| The property investigation system of civil execution is the key link to guarantee the smooth settlement of civil execution.Considering that China’s civil execution is in the background of limited judicial resources,a large number of civil execution cases can not be identified because of the execution property,so that the legal rights and interests of the applicant can not be realized.Although China’s laws and relevant judicial interpretations have stipulated the way of property investigation in this system,the provisions are not specified and many problems occur in the application process,which makes it difficult to give full play to the actual effect of property investigation.Therefore,it is particularly urgent to further enrich its investigation content,improve its responsibility guarantee,and make the system more practical in the implementation practice.In order to further strengthen the standardization of the civil execution of property investigation system in our country,strengthen the investigation of the actual effect,on the civil execution provisions on some issues of property investigation finally in 2017,introduced in the eagerly looking forward to the people,although it makes every effort to perform the integrity of the property investigation,systematic,but the rules in the intricacies of the execution still faces many challenges in practice.In this paper,through the analysis of articles in our country the system in the operation of the legislation and judicial practice,among them,found that the current legislation of "the applicant to provide clues,property subjected to execution report,the court authority investigation" many problems of multiple research methods such as: first,for the applicant to provide clues to the type,its "responsibilities" misallocation;Secondly,as for the property report of the subject of the investigation,the subject of the investigation is single and the legislation only stipulates the subject himself as the subject of the report,so the punishment is not strong enough when the subject violates the obligation of property report.Secondly,the order of application of the court’s power investigation method is not clear and the conditions of application and the starting method of the court’s power search are not perfect.Finally,the scope of the subject of the obligation to assist in investigation is narrow,and there is no strong sanction measures for the subject who violates the obligation to assist in investigation.Therefore,based on the comparative analysis of the different extraterritorial civil execution property investigation systems of the continental law system,the British law system and the American law system,the paper puts forward the following suggestions for improvement based on China’s national conditions: First,optimize the allocation of "rights and responsibilities" of applicants to provide clues.On the basis of the current legislation that "the applicant for execution should provide clues",the"conditionality" of the obligation of providing clues should be further clarified,and the adverse consequences of the applicant for execution not actively providing clues should be clarified.At the same time,the system of lawyer’s investigation order in civil execution should be perfected into law to make up for the lack of investigation authority of the applicant.Secondly,perfect the property report system of the subject.On the one hand,on the basis of the existing legislation which only defines the subject as the subject of property report,the expanded person of the subject is brought into the scope of the subject of property report.On the other hand,the disciplinary effect of detention measures was strengthened by extending the maximum detention period of 15 days to three months.Then,perfect the court property investigation authority allocation.Through legislation to clarify the order of the post-application of the court’s investigation of authority and improve the search procedure in the investigation of authority and the applicable conditions and start mode;Finally,strengthen the cooperation mechanism of the subject of investigation obligation.Through legislation to legal,meaning" distinguish obligation to assist in the investigation subject,expand the scope of the obligation to assist in the investigation subject and the public security organ,the central bank as the main body in the legal obligation to assist in the investigation,the law is not clear for legal assistance subject units or individuals for the obligation to assist in the investigation by the main meaning set by the court according to the case.At the same time,legislation should be perfected on the types of legal liability and sanction measures of natural persons who refuse to assist,so as to improve the liability provisions of the subject of the obligation of assisting in investigation.By systematically sorting out the above problems and relevant suggestions for improvement,this paper hopes to bring into play the actual effect of property investigation and solve the "difficult implementation" problem that China has been facing in the implementation practice. |
