On Improvement Of Property Ascertainment System In Civil Execution Proceeding In China

There are two ways to realize the rights and obligations in effective legal documents, one is to enforce, the other is to conscientiously fulfill. Once the civil judgment enters into the execution proceeding, the parties concerned can no longer conscientiously fulfill. Therefore, the execution procedure is the last stage to protect the interests of the creditors. Some cases appear difficult in implementation at this stage, the main reason is that it is difficult to find out the property of the person subjected to execution. The legislation and judicial practice is relatively backward, and specific operation is excessively broad. Although we make positively development in judicial practice, but it has little effect. This paper first overviews the concept, basic theory and function of the property ascertainment system, and then find out the disadvantages of the system in our country. At last we summarize a property ascertainment system with Chinese characteristics through analysis of two important legal systems abroad.The perfect thinking has been put forward to solve the problems in this system. First of all, the applicant executor providing the clues of property is his obligations rather than the burden of proof; Second, we should insist that the enforcement agencies leading the procedure of property investigation, so we can confirm the place of enforcement agencies in civil execution and the relationship with the applicants; At last, we should insist the limit idea of investigation in order to prevent the excessive waste of judicial resources.In terms of concrete systems, first of all, we should confirm the obligation of applicants in order to preventing the phenomenon of refusing implement owing to the proposer s didn’t providing the clue of properties, and we can tell the proposers the obligation of providing the clue of properties and the aftereffect of couldn’t provide the clue.; second, we should systematize the working of property investigation by establishing the specialized property investigation procedure, by that we can confirm the responsibility of the parties; thirds, we should improve the system of mandatory investigation, the way of information inquiry will be expanding by authorizing the property investigation, and the working pressure of enforcement organization will be easing; the last, the system of financial disclosure should be improving, then the realness of financial disclosure will be guaranteeing.