An Empirical Study On The Unclear Basis Of Civil Enforcement

The basis for civil execution,as the result of the civil trial stage and the basis of the implementation activities,should be clear.Article 18,paragraph 1(4)of the Supreme People's Court Provisions on Several Issues Concerning the Implementation of the People's Court(Trial)in 1998,for the first time,required the clarification of the effective legal document as the basis for enforcement,that is,"the legal documents for the execution of the application ought to have the content of payment,and the subject matter of the execution and the person being executed ought to be clear".Afterwards,the interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China and Opinions of the Supreme People's Court on the Coordination of the Filing,Trial and Enforcement of Cases by the People's Court in 2018 are constantly refining standards.However,what is"unclear basis of civil execution"is still not uniform in academic discussions,and the solution in judicial practice is not very optimistic.By reading the relevant literature,legislative provisions and refereeing documents,the author tries to summarize the types of unclear basis of civil execution in China,and this paper makes a comprehensive discussion on the problem of the lack of clarity in the basis of civil execution through the path of "inductive type"-"analysis of causes"-"design system".The discussion will make recommendations for the solution of the unclear situation of civil execution in China in the future.The research method of this paper is mainly empirical analysis.This paper analyzes the main performance of unclear basis of civil execution based on judicial practice through a sample survey on the civil execution of the national courts between 2014 and 2017,based on the unclear cases and the public judgment of the courts throughout the country in 2017,the content of the civil execution is unclear.It points out that the reasons for the unclear basis of civil execution are diverse and cannot be completely eliminated.However,it can be alleviated by establishing two mechanisms:ex ante prevention and post-event response.Moreover,this paper combines the specific situation of China and conducts a theoretical discussion on the specific institutional structure,in order to benefit the settlement of the problem in China.The main content of this article can be divided into four parts.In the first part,in view of the fact that neither the theoretical nor the judicial circles have clearly defined the unclear basis of civil execution,the author first tries to elaborate on this concept in this part.The second part is empirical analysis.This part contains three parts.The first content is the nationwide statistics on unclear cases of civil execution.The second content is to analyze the overall trend and the seriousness of this phenomenon in China according to the previous statistical data.The third content is to rely on the China Judgements Online to analyze the specific contents of all cases of unclear basis of civil execution throughout the country in 2017,and to draw the specific situation and proportion of each type in the judicial practice.The third part discusses the causes of unclear cases.This part mainly analyzes the specific circumstances of the civil execution based on the unidentified case in the second part.It is concluded that there are four main causes,namely,the unclear of litigant's claims,the imprecise work attitude of part of the referee,the departments based on execution are separated from execution departments,and the declaratory judgement is completely excluded from the scope of filing.The fourth part,based on the results of empirical analysis,advise on two aspects:pre-prevention and post-hoc response.It is believed that the prevention mechanism should be divided into perfect litigation request by explanation and establish a communication and coordination mechanism among agencies.When the problem has already occurred,the court should adopt the mode of trial interpretation to provide relief,correct the basis of enforcement by supplementary judgment.