The Perfection Of China's Security Of Implementation

The ultimate purpose of civil execution is to turn the creditor's rights into real interests.Efficiency is one of the basic principles of civil execution,which requires the execution office to take the rapid,timely,uninterrupted measures and it is supposed to be continued till the law requires it to stop.The enforcement of guarantee is a kind of postponement of the execution,which is an important system in civil enforcement in China.It combines the civil and commercial guarantee system and execution procedure.With the nature of private and public laws,it is available for both the procedural law and substantive law,which makes it of complexity and particularity.In China,the purpose of guarantee system is to ensure the creditor's rights,simultaneously protecting the legitimate interests of the debtors and avoiding the adverse effects on the production and life of theperson subjected to execution.In that way,it balances the interests between the creditor and the debtor to realize real fairness and justice.However,nowadays the theoretical studies on the enforcement of guarantee are not thorough enough with strong authority principles.Furthermore,owing to the crude relevant legislation with weak operability,the civil execution guarantee system is unable to play its due legal and social effect.Therefore,the further theoretical study on the enforcement of guarantee is of great importance to perfect the relevant legislation and the civil execution guarantee system.The thesis consists of 5 parts.The first part analyzes the basic theory of civil execution guarantee system.This part analyzes the enforcement of guarantee on its nature,the legal relationship in it and its function paving the way for further analysis in the thesis.Through the analysis,it points out that the enforcement of execution meets the need of economic development,which also takes account of humanism spirit and the protection of the rights of the person subjected to execution.Then,through the comparison with relevant legal systems,it shows the particularity of the system.The second part points out the problems in the execution guarantee system in China.The problem of system operation is that the people's court plays an ambiguous role in guarantee execution.The executive court tends to interfere during the establishment of the enforcement of guarantee,not respecting the free will and rights of due parties,which shows the strong authority principle.Besides,there is no unified application system during judicatory practice.Applicable cases are quite few.Moreover,there exists concurrence betweenexecution reconciliation and execution guarantee.Hence the relationship between them should be disentangled.Also,the guarantor's rights can not be protected for the tough way to exercise the right of recourse.The third part analyzes the causes of the problems existing in execution guarantee system.Firstly,it is the lack of theoretical studies.The thesis analyzes the nature of enforcement power and enforcement action,paving a way for the further work.Secondly,it is the crude legislation of weak operability.Lastly,it is the relatively weak awareness of protecting the rights of the person subjected to execution,which is likely to lead to the abuse of executive power by the execution court and the judge.The fourth part summarizes the common characteristics and value of the enforcement of guarantee system in Germany,Japan and Taiwan through the comparative analysis.That is to respect the will of the parties,to value the protection of the rights and interests of the guarantor,to set up a specific system and to be of strong operability.All of the characteristics reflect the nature and laws of the system,which we can take for reference.The fifth part puts forward several suggestions to perfect the enforcement of guarantee system in China.According to the analysis of enforcement power,it shows that enforcement power has the nature of executive power and judicial power.It is necessary that the execution court ought to work as a neutral supervisor during the enforcement of guarantee,broadening the range of application.The thesis also puts forward specific measures.That is to limite the final decision power on the enforcement of guarantee of the execution court,to regulate the system and to define the right remedy methods.Moreover,the execution court is supposed to exercise the interpretation right actively.Finally,the guarantee should be given the right of claim towards the person subjected to execution with no worries.All of the measures together with the perfection of the relevant supporting system and the efficient operation will play a part in solving the problem of enforcement.