Research On The Reflection And Improvement Of My Country's Supervisory Procedures

The procedure of hastening debt recovery was first created by the German Civil Procedure Law in 1877.Its legislative purpose is to save the substantive trial stage of the court for cases with clear claims and debt relations,so that creditors can quickly obtain legal documents with compulsory execution.The procedure works very well in Germany and currently resolves approximately 80% of civil cases each year.On the basis of drawing on relevant legislative measures in Germany and other countries,China had a special chapter in the "Civil Procedure Law" officially enacted in 1991 to provide for the procedure of hastening debt recovery.Since then,through the amendment of the law and the introduction of judicial interpretations,the system regulations of the procedure have been continuously optimized,and a relatively complete system has been formed.The procedure of hastening debt recovery is applicable to cases where the parties have no dispute over property payments,and there are many cases in judicial practice that meet this applicable condition.And with the continuous emergence of financial application such as "Alipay Huabei" and "Jingdong Baitiao" that provide short-term consumer loans,more cases in China have emerged that have clear claim and debt relationships that meet the conditions for the application of the procedure.However,in practice,most of the above non-substantial disputes floods into the lane of litigation,and the procedure of hastening debt recovery does not play the role of diverting civil cases.In fact,the procedure is idle in many grass-roots courts,and its effectiveness in practice is not good,mainly as follows: First,its actual application rate in recent years has been only four-thousandths,which is far lower than people's expectations of the procedure;Secondly,the debtor objection rate is as high as 30%.In practice,there are many cases where the debtor abuses the objection right and even falsifies the evidence to raise an objection,which indirectly reduces the enthusiasm of the right holder to apply the procedure.The reason why the procedure of hastening debt recovery is not working well is because there are some problems in the three aspects of the system structure,judicial practice and the development of electronic payment orders.Firstly,at the level of system construction,certain specific rules have limited the application of procedure.First,the current institutional framework lacks punishment measures for debtors whoabuse their right of objection,and it indirectly increases the objection rate of the debtor.Second,no application for property preservation is a prerequisite for the court to accept an application for a payment order,which make the procedure act as an alarm for the debtor to transfer property.Third,although China has set up a mechanism for the connection and transformation of urgency procedures and litigation procedures,it has only principled provisions and lacks practical operating procedure.Fourth,false payment orders greatly reduce the function of the procedure,but legal and judicial interpretations only provide a remedy for erroneous payment orders,and the system has high thresholds.Secondly,in judicial practice,grassroots courts often do not guide the application of procedures,and there are some irregularities in the operation process.First,some judges have a rigid mind when judging whether the debtor's objection is established,and only exclude the reasons for the objection,such as the method of payment and the time limit for payment,which are not related to the claims debt relationship.Secondly,the rulings of the final urging procedures in some courts are too rough,lacking in the reasoning process of establishing an objection,and even failing to specify "reviewed",which makes the final decision less acceptable.Finally,the electronic reform of procedures has been hindered by some technical and institutional rules,and the pilot work has progressing slowly.To activate the procedure of hastening debt recovery,we must first increase the enthusiasm of the creditor to apply the procedure.For example,allow the application of the property preservation system to ensure that creditors have assets available for execution after receiving an effective payment order;improve the convergence rules between urging procedures and litigation procedures,and minimize the cost of creditors' time and money.Secondly,the construction of the procedure must be guided by the balance of interests and follow the concept of process legitimacy.It is necessary to provide not only punishment measures for abusing the right of objection,but also to set up an error correction mechanism for false payment orders.At the same time,the application standards of the payment order and the examination standards of the debtor's objection must be close in form and content,so that both parties can obtain the same level of protection.Third,the court should actively guide creditors to choose the procedure of hastening debt recovery and regulate the disagreement review of payment orders.Finally,in the process of the electronic reform,some rules of the traditional urging process must be adjusted according to the current level oftechnology,such as determining centralized jurisdiction rules,optimizing electronic delivery rules,etc.,to improve the efficiency of electronic payment orders.In view of the fact that the entire process of an electronic payment order is carried out in a network environment,in order to implement the concept of the legitimacy of the procedure,the court must send a notice of risk to the counter party when the payment order is issued,prompting the rights and obligations.Through the efforts in the above aspects,we try to construct a suitable path for the smooth operation of the procedure,and look forward to the procedure of hastening debt recovery to get rid of the plight of practice and play the system function.