Research On Procurator Supervision System In Civil Execution

Before the new modification of the civil procedure law,academic debate of civil execution procuratorial supervision system mainly focus on the necessity of its existence and demonstrate from the aspects of legal,policy and implementation status.In practice,the sign of civil execution procuratorial supervision pilot notice issued,began a civil execution to explore the feasibility of the existence of procuratorial supervision system,Shanxi,Neimenggu,Shanghai,Zhejiang,Fujian,Jiangxi,Shandong,Hubei,Guangdong,Shanxi,Gansu and Ningxia provinces as a pilot areas to carry out the pilot work for the civil execution procuratorial supervision.At this point,the civil execution procuratorial supervision system began to establish and develop slowly.The first part of this article,as a whole,introduced the civil execution,clarify the concept of civil execution and the civil execution supervision,analyzes the necessity and feasibility of civil execution procuratorial supervision system.This article analyzed from execution efficiency,opposition to execution,execution objection lawsuit and reversed,showing the civil execution relief is not enough and court internal supervision insufficiency cannot satisfy the demand.The existence of civil execution procuratorial supervision system is necessary.In this paper,the second part mainly introduces the legal basis of the civil execution procuratorial supervision system,analyzed the nature of civil enforcement,the nature of the procuratorial supervision,as well as the restriction and balance between the two kinds of rights.About the nature of the two kinds of rights has been some debate.For the debate of civil enforcement is civil executive power decentralization property attribute,I think that the current civil executive power is a power of jurisdiction.About the nature of the procuratorial supervision,this article analyzes the legal supervision of procuratorial authority attributes from the nature of prosecutorial power,and distinguish the emblem of the procuratorial authority and conditionality impartially further,finally,it is concluded that,civil execution procuratorial supervision is a kind of supervision and procuratorial authority,the power comes from the authorization of laws and regulations.Any power is not a reasonable restriction and supervision,will be like a “wild horse”,endangering national rule and the social order,damage the interests of citizens.Therefore,this article analyzed the civil execution procuratorial supervision of civil execution supervision and restriction from the inevitable requirement of power restriction,the urgent needs of the right remedy and the significant advantages of procuratorial supervision three aspects.In this paper,the third part is In view of the civil execution procuratorial supervision system with the comparative method,include the Anglo-American law system,civil law system,and The former Soviet union and Russia’s law system and summarized the part of the benefit to construct Civil execution procuratorial supervision system in our country.Although the Anglo-American law system countries not establish civil execution procuratorial supervision system in the true sense,but the setting of the actuator to the construction of execution system is worth learning.The division of referee and implement can conducive to civil enforcement activities in Germany and France.The authority of our country’s execution,the Court itself is both a referee and the implementation of the civil execution organ,led to the problem of difficult perform,it violate the principle of decentralized restriction.In this paper,the fourth part analyzes the problems in the operation of the civil execution procuratorial supervision system from the legislation and practice.On legislation,the new changes of the civil procedure law make the civil execution procuratorial supervision has the legislation support.After that,the Procuratorate and the court issued the rules and notification,but it cannot fully meet the needs of the practice exercise of civil execution procuratorial supervision.The scope of civil execution procuratorial supervision is not clear,the way of civil execution procuratorial supervision is not enough,and the program of civil execution procuratorial supervision is not perfect.In practice,this article analyzed the civil execution procuratorial supervision system in the process of running the problem combining with the judicial practice of pilot area.I found that civil execution procuratorial supervision has weak power of ranks,the working mechanism is not perfect and the Court is not cooperate with Procuratorial organs.In this paper,the fifth part analyzed the problems existing in the legislation and practice respectively;puts forward detailed suggestions on legislation and practice.In the legislative proposals,the scope of civil execution procuratorial supervision should be more systematic and specific provisions,the procedural civil execution procuratorial supervision way should include a requirement to perform duties of the Court on the procuratorial advice and requirements to civil execution procedure of procuratorial suggestion,the substantive civil execution procuratorial supervision shall include cancellation illegal execution of procuratorial opinions and suggestions of judicial compensation.In addition,this article also puts forward suggestions for perfecting the civil execution procuratorial supervision procedures from the conditions of the start of the civil execution procuratorial supervision,the legal time limit and the jurisdiction about the perform of trans-regional and reconsideration of perform three aspects.In practical advice section,long-term training for prosecutor’s ability,polymers and measures to expand the channels of case sources and strengthen the cooperation between the Procuratorate and the Court are suggested.In a word,the establishment and perfection of the civil execution procuratorial supervision system is in order to ensure the correct implementation and maintenance the interests of the citizen,but civil execution procuratorial supervision system is still in the initial stage of exploration in our country and there are many deficiencies in legislation and practice.It needs improve and update constantly according to the juridical practice of the civil execution procuratorial supervision system.