Study On The Implementation Mechanism Of "Separation Of Adjudication Enforcement" In Non-litigation Administrative Cases

Non-litigation administrative execution system has been in operation in China for more than 20 years since it was formally established by the administrative procedure law in 1989.According to the current implementation mechanism of "combination of adjudication and enforcement" applicable to non-litigation administrative cases in China,the courts are responsible for both examination and implementation,which leads to the deviation of the functions of courts centered on litigation and trial.At the same time,under the current political structure of our country,the local courts are bound by the local government in terms of personnel appointment and removal as well as financial revenue and expenditure,so it is difficult to guarantee the independence of judicial review.With the continuous development of the society,the problems caused by this implementation mechanism are constantly appearing in judicial practice.In order to solve the problems exposed by the execution mechanism,the academic circles have put forward some reform plans,and the practical circles have also made many innovations and attempts in the way of case trial and execution.So in such a background,this paper tries to study the drawbacks of the traditional execution mechanism,hope to find a suitable for the reform of China's national conditions,by analyzing and evaluating academic exploration of accusing the reform of the administrative execution way,argued that builds up a set of more reasonable enforcement mechanism,namely "cut of separation",realize the right of judicial review and compliance with rights separation and balance each other,alleviate the current situation of implementation difficulties.The supreme people's court first carried out the pilot project of "separation of adjudication and enforcement" in the field of expropriation and compensation of state-owned land and houses,and local courts responded positively,which triggered extensive discussions and heated discussions.Although "separation of enforcement of arbitration" is a new thing,it is necessary to promote the "separation of enforcement of arbitration" in China's non-litigation administrative execution cases,because the implementation mechanism of "combination of enforcement of arbitration" has been exposed to various drawbacks.However,the reform of the enforcement mechanism of "separation of enforcement from arbitration" is confronted with many problems that cannot be estimated,such as the ownership of the right of enforcement,and the lackof remedy for the person subjected to execution.This paper is divided into four parts to study the implementation mechanism of "separation of adjudication enforcement" of non-litigation administrative cases.In the first part,by exploring the reasons why the development of the execution system of non-litigation administrative cases in our country has fallen into difficulties,the author sorts out three kinds of exploration on the way out of the difficulties in the academic community,and concludes that the gradual "separation of enforcement by arbitration" is the most suitable solution to China's national conditions.The second part through the analysis of the theoretical basis of "cutting board of separation",this paper expounds the "lay of separation" of the value and feasibility of enforcement mechanisms,as well as the outside investigation and analysis of three kinds of administrative execution mode,summed up the "lay of separation" of our country execution mechanism to build the enlightenment;In the third part,through the analysis of relevant legal documents issued by local authorities on "separation of arbitration enforcement",it shows that the current enforcement mechanism of "separation of arbitration enforcement" lacks direct legal basis.Meanwhile,based on the investigation of 70 cases,it reveals in detail the operation characteristics and existing problems of "separation of arbitration enforcement" in the pilot.In the fourth part,through the above reflection "cut of separation" characteristics and problems of execution mechanism test,we can find that the lack of basic principles of the reform of guidance,produces the reform direction deviating from the real possibility,therefore to discuss "cut of separation" execution mechanism in the process of operation should follow the basic principle as the breakthrough point,clear court,administrative organs and procuratorial organs in each link and positioning of labor division,give full play to the supervision of the judicial review safeguard function,completely off the court in the role of carrying out the execution phase.At the same time,we should construct an external soft system to ensure the benign operation of the "separation of enforcement and enforcement" implementation mechanism,and improve the corresponding legislative regulation and system.