The Study On Civil Conciliation Of Execution

Conciliation of execution, a system in which the interests of creditors and debtors can be balanced, not only is good for the in time liability fulfill, conflict mitigation and cost savings, but also decreases the harsh binding effect of legal documents. However, in actual implementation, the different cognitive to the legal effect of Conciliation of execution has leads to confusion implementation. For this reason, it is necessary to strengthen research in the legal issues of settle agreements, and to improve our execution reconciliation system, in order to play its due role in the civil execution.In civil execution procedure, a settlement is execution applicant’s disposition to his substantive and procedural rights, and is recognized as a sign of the parties’ autonomy principle. As a legal system, the core of the conciliation of execution is that the parties voluntarily dispose of their substantive rights and procedural rights, and that the court suspends or terminates the execution in accordance with the principle of parties’ autonomy meaning.As the current civil procedure legal system does not give the debtor’s objection rights to file a complaint, the court should review the actual performance of the pacification agreement reached between the parties. For execution applicant reached a pacification agreement due to fraud or coercion, the current law merely gives the right to apply for the revival of the original effective legal instruments, which is not only lack of punishment for the person subject to enforcement, but also lack of the beneficial protection to the execution applicant.At present, the daily executive practice found that the execution reconciliation system in China has the following problems:the pacification agreement does not have the legal effect it shall have; The position and role of the court in the execution reconciliation process is unclear, and the rule that court shall not participate in the implementation of settlement process does not conform to the executive practice reality; the requirements for the establishment of the client’s settlement is unclear; Whether court has the audit responsibility in the process of execution reconciliation on the parties reach a reconciliation agreement is not clear. Those insufficient above led to the execution reconciliation system can not be effectively applied in the actual execution process, which can not meet the expectation to the legal effect and social effect of execution reconciliation, not only wasting the limited judicial resources, but also causing confusion in the execution work more easily.Against these problems, the current execution reconciliation system shall be improved and perfected from the following aspects:1. To implement the due legal effect of the pacification agreement. Execution reconciliation should be considered as civil contract, and that the parties performing it shall be considered as private law behavior. The parties shall bound by this behavior, when a party fail to the performance this agreement, the other party not only may request execute the original effective legal documents, but also request the other party to assume greater responsibility of breach of contract according to the provisions of the pacification agreement, thus it increased the person subjected to execution of malicious default cost pacification agreement, and the execution applicant’s right can be protected.2. To clear the court’s position in the process of execution. The execute court shall inform the parties who reached a settlement the corresponding legal consequences; The people’s court may, on the basis of fully consider the interests of all the parties, facilitate the parties to reach an agreement during the performance of the obligations specified in the legal document.3To give the court the right to review the pacification agreement. Performing a reconciliation is not just about the interests of the execution applicant and the person subjected to execution, it can also improve the efficiency of the court’s execution work. If the court is given the right to review the pacification agreement, that the court can examine whether the reconciliation agreement the parties reached is again the laws and regulations, prevent some malicious use of the pacification agreement divided each other’s interests, and avoid the situation that repeated execution process due to the pacification agreement is null and void and revocable, thus judicial resources is saved.4. To authorize the execution applicant the right to apply for a separate suit in accordance with the settlement. The current law regulates that if one party fails to perform the settlement, the court shall restore the execution of the original effective legal documents on the application. Pacification agreement reached in the execution process is a new debt relationship between the execution applicant and the person subject to execution, which is not attached to the original effective legal documents, and has the effect of a civil contract, that the execution applicant can also file a lawsuit based on it, and gives the person subjected to execution more punishment.5. To establish the debtor objection lawsuit system. In some more complex cases, the court has difficulties in examining whether the settlement practice, when the person subjected to execution is given the right to file a law suit is helpful to protect both parties’ legitimate rights and interests.