On The Study Of China Suspension Of Execution Guarantee System

Suspension of the Enforcement Guarantee is a system in the execution procedure,which is stipulated in Article 231 of the Civil procedure Law of our country.Based on the theory of guaranty law,it has been reformed in the aspects of subject,condition and effect.It not only has the component of party autonomy,but also embodies the force of judicial intervention.The thesis is divided into four parts:The first part is the basic theory of Suspension of the Enforcement Guarantee.Firstly,on the legal nature of Suspension of the Enforcement Guarantee,theoretically including "public law theory" and "three sides theory",this article agrees with "public law theory".Secondly,as to the establishment elements of the suspended guarantee,this paper mainly discusses the question of whether to require the enforce to have a temporary difficulty in performance.Thirdly,in order to better understand and apply the system of suspension execution,the author compares the suspension security,the enforcement of conciliation guarantee,the civil preservation guarantee and the enforcement relief guarantee from the aspects of legal effect,the purpose of the system and the applicable situation.Fourth,explore the suspension of execution.The system can protect the interests of creditors and the interests of debtors,secondly,it is particularly important for the development of small and medium-sized enterprises in China and the maintenance of social and economic stability.At the same time,it can alleviate the social contradiction and the phenomenon of "difficult to carry out" indirectly.The second part is about the problems existing in Suspension of the Enforcement Guarantee.First,the position of the enforcement court is vague,and there are the following doctrines on its position in suspending the security: "the central examiner","the examination supervisor","the depository authority","the enforcement of the security right ".Secondly,the guarantee law is lack of adaptability in the application of the suspension guarantee,it is difficult to determine the guarantor in the process of application,and the applicable conditions of the security law can not be applied to thesuspension guarantee.Third,the direct execution of the guarantor's property without additional guarantor as the executor lacks the source of enforcement force,but the additional guarantor is the person to be executed.The executor has no theoretical support.Fourthly,the current law is too single for the surety to recover after undertaking the guaranty liability.The third part is mainly aimed at the reason analysis of the problem mentioned in the paper.The first is that the functions of the executive body are too centralized,and the court assumes too many functions so that it is difficult to position it.Secondly,the legislation is not perfect,the substantive law and the procedural law on the treatment of collateral are different,the provisions of the security law can not be applied to the suspension of security.Thirdly,our country does not have the systematic execution theory as support,at present also emphasizes the execution difficult solution,both have led to the random supplementary execution in the execution,the present execution theory can not satisfy the executive power expansion.The fourth part is the improvement measures for the second part of the paper.First,aiming at the difficult position of the executive organization,it is possible to separate the various functions of the executing agency,and at the same time,to set up the depository institution in the court to take on the deposit of the collateral.Secondly,the lack of adaptability of the security law in suspension guarantee can be defined by judicial interpretation.Thirdly,to give the guarantor "undertaking" to enforce force to solve the direct execution of the guarantor's property lack of enforcement.Fourth,grant the guarantor the option of relief,increase the recourse through the application for payment order,in case of dispute,it can be recovered through litigation,and it can be directly applied for payment order without dispute,which reducing the burden of surety.