Research On The Allocation Of The Chinese Civil Executive Power

Promoting the reform of the separation of trial and execution,optimizing the allocation of the civil executive power,and solving the "difficulty of civil execution" which perplexes the masses have always been the "important tasks" in the reform of the judicial field.Zhou Qiang,President of the Supreme People's Court,at the "two sessions" in 2016,on behalf of the national court system,proposed the goal of basically solving the " difficulty of civil execution " within two to three years.At present,to solve the "difficulty in execution" to the decisive stage,the courts throughout the country,day and night,"5+2" and "white + black",strive to achieve the basic solution through the third party evaluation of the "difficulty in execution" this goal.However,this campaign can not fundamentally solve the "difficulty of execution".To solve the problem of "difficulty in execution",the most important thing is to carry out the reform of the execution system and reconfigure the civil execution power.At present,the various sessions,especially the judicial practice sessions,do not have a thorough understanding of the civil enforcement power.They often "attach more importance to the trial than to the execution",and some people even think that the execution is the extension or subsidiary of the trial.The Fourth Plenary Session of the Eighteenth Central Committee of the Communist Party of China adopted the Decision of the Central Committee of the Communist Party of China on Several Major Issues Concerning the Comprehensive Promotion of Ruling the Country by Law,which put forward the idea of "perfecting the judicial system and promoting the pilot reform of the system in which the judicial power and the executive power are separated",and pointed out the basic spirit and direction of the reform of But how to implement it is not clear.This paper is divided into four parts.Starting from the discussion of the nature of civil enforcement power,it reviews and analyzes the history,current situation and existing problems of the allocation of civil enforcement power in China,and on the basis of introducing relevant countries or regions outside China,it puts forward some suggestions on the reconstruction of the allocation mode of civil enforcement power in China.In the first part,starting from discussing the legal nature and constitution of the civil execution power,the author introduces and analyzes in detail three viewpoints on the legal nature of the civil execution power,and holds that the civil execution power is a kind of compound power,which includes both judicial power and administrative power.Based on this,we draw the conclusion that civil execution power consists of two kinds of powers,namely,the enforcement of adjudication power and the enforcement right.The second part reviews the historical evolution of the allocation of civil execution power in China from the "trial-execution integration" to the Executive Court and then to the executive board.It holds that the allocation of civil execution power in China is unreasonable both in legislation and implementation.It is difficult to establish a unified and efficient execution system and to execute adjudication.The power to execute adjudication and enforcement is based on the Executive Board.It is difficult to form effective supervision,the nature of the Executive Board is not reasonable,the role of the executive is not clear enough.These problems can not be solved,and the implementation of "difficult" will be more difficult.The third part introduces the allocation of civil execution power in Britain,America,Germany,France,South Korea and Taiwan,and summarizes the Enlightenment of civil execution weight structure in China.The fourth part holds that the reform mode of "deepening internal division and partial external division" is more suitable for the present situation of China's civil enforcement work,and puts forward the suggestions of setting up the executive affairs bureau for exercising the civil executive implementing power,exploring the establishment of the executive Tribunal for exercising the civil executive veverdicting power,perfecting the mechanism of selecting and appointing executives,quickening the enforcement legislation.Four suggestions for progress.