Research On The Types And Relief Of The Court's Unenforceable Basis Of Enforcement

The proverb of law says,"Enforcement is the end and fruit of law." However,in judicial practice,there are a large number of decisions that can not be executed once they are made,which are not caused by the fact that the executed person has no property to be executed or the objective situation changes after the judicial documents come into force,but by the defects of the enforceability of the judicial documents themselves.At present,China's legislation and relevant judicial interpretations only provide for the unclear basis of enforcement,but the type of court enforcement basis is not limited to the unclear basis of enforcement.In judicial practice,there are many phenomena of unenforceable execution basis,and the court's handling methods are not uniform.The theoretical circles only focus on the research on the unclear basis of execution,ignoring the function of pre-prevention.The types of enforcement basis that can not be implemented are complex,and a single relief mechanism can not properly solve practical problems.Based on the existing research,144 cases originating from judicial practice will be typed by using typological analysis method,and different remedies will be given to different types by drawing lessons from the legislative experience of continental law countries.In the construction of typification,the research object is divided into two types,each of which is divided into several sub-types.The first category is the unclear basis of execution,which can be divided into the unclear basis of execution as a whole,the unclear subject of rights and obligations and the unclear object of execution.The second category is not caused by the unclear basis of execution.It includes the types of affirmative judgment,concurrent payment judgment,the executed person has no authority,the conflict between executive power and administrative power,and the lack of enforcement conditions.In the construction of relief mechanism,the dual-track system of pre-prevention and post-relief is adopted.Preventive measures are mainly realized through the adjustment of substantive law,the proper exercise of the judge's power of interpretation and the operation of the coordination mechanism of trial and execution.In the aspect of remedy after the event,the remedy mechanism of flaw judgment in civil law countries can be used for reference when the basis of execution is not clear.For the latter three types of the second category,we should focus on discussing which way to close the case.For the first type of the second category,we should focus on whether it is enforceable or not.For the second type of the second category,the interests of both parties can be balanced through third-party trusteeship.