Research On The Model Of Separating Judgment From Non-litigation Administrative Execution

Non-lawsuit administrative execution refers to the execution system that directly proceeds the execution procedure after the court review,while the specific administrative act as the basis of the execution is yet undertaken legal proceedings.There are some controversies of the non-lawsuit administrative execution system during the enforcement in China.Currently,the law stipulates that most administrative agencies shall apply to the people’s court for compulsory enforcement.However,how to determine the ownership of the enforcement subject after the people’s court has reviewed it still varies in practice.In 2012,a system of separating judgment from enforcement was stipulated in the expropriation of state-owned land housing and enforcement of land violation,which was the debut for the separation of judgment from enforcement in non-lawsuit administrative execution.Consequently,some places began to apply the model in other fields.The model of separation of judgment from enforcement is based on a brand-new concept under the scope of non-lawsuit administrative execution,which inspires a new solution to shoot the executing problem in non-lawsuit administrative execution cases.The key to the model is to determine the executive subject between the administrative agency and the court and rearrange the entire process of non-lawsuit administrative execution.The separation of judgment from enforcement could streamline the executive power to a particular administrative agency with review power and enforcement power separated.The separation implements the principle of separation of powers and checks and balances,conducive to realizing judicial independence.Additionally,it is of great significance for enhancing the authority of judicial power and maintaining the neutrality of the court.Nevertheless,there are problems in implementing the model of separation of judgment from enforcement represented by the limited scope of application,insufficient legal support,unclear review standards,regulations on the subject of enforcement,and methods of responsibility determination.These have caused law enforcement scramble of enforcement agencies when applying the model,which creates a tension between public power and the private rights of the people.Therefore,the paper analyzes the academic disputes of the nature of non-lawsuit administrative execution power to determine the prerequisites for the model of separation of judgment and enforcement.Based on the current status of legislation and practice of the separation of judgment from enforcement in non-lawsuit administrative execution,and the relevant experience of foreign countries and regions,the author employs the research methods of normative analysis,empirical analysis,and comparative analysis to propose a specific path for the improvement of non-lawsuit administrative execution in China.Particularly,these include: 1)clarifying the scope of application of cases of separation of judgment from enforcement by taking property in the scope of enforcement and expanding the scope of application of enforcement;2)establishing a system of separation of judgment from enforcement at the higher-level law;3)creating clear review standards with differentiated review procedures available and standards for the combination of the formal review and substantive review implemented;4)clarifying the executive subject of the separation of judgement from enforcement and proposing a remedy mechanism for illegal enforcement.