Study On The System Of Lawyer Investigation Order In Civil Execution Procedure

The root cause of "difficult execution" and "low execution rate" is that the execution property cannot be found and thus cannot be executed.Under the pressure of a small number of people filing cases,the court cannot devote its energy only to investigating the property of a person subject to execution,so it needs to actively explore and find other ways to execute property.As one of the property discovery systems in the execution procedure,the lawyer investigation order system has been applied in various parts of the country and achieved good results,but there are still many doubts in theory and practice.The author takes the lawyer investigation order system in the civil execution procedure as the research object,adopts the theoretical and practical analysis method to discuss its theoretical arguments and practical problems,analyzes the system development status through the relevant documents issued by the provinces and practical results,finds the difficulties faced by the system operation and analyzes its causes,and finally puts forward suggestions for improvement.In order to provide the direction and path for the development of lawyer investigation order system in civil execution procedure.The first part is an overview of the lawyer investigation order system in the civil execution procedure.Firstly,this paper analyzes the theoretical origin of the lawyer investigation order system.Although it is originated in China,it draws on the institutional experience of foreign countries.Secondly,it analyzes the development status of the lawyer investigation order system in the civil execution procedure from the provisions issued by the high court of each province,that is,it is still in the exploratory stage and needs to be further perfected.Finally,by comparing and summarizing the system provisions of Sichuan,Guizhou,Henan,Hebei and Hunan provinces,this paper analyzes the main contents of the lawyer investigation order system in the civil enforcement procedure at the present stage and the differences of the system in each region.The second part analyzes the necessity of extending the lawyer investigation order system in the civil execution procedure from three aspects: nature,jurisprudence and effectiveness.From the point of view of nature,compared with the particularity of the trial stage,the lawyer investigation order system in the execution stage has more targeted investigation objects,the postsetting of the procedure and the non-neutrality of the executive judge.From the perspective of jurisprudence,the operation of the lawyer investigation order system in the execution procedure conforms to the spirit of legislation,which not only guarantees the procedural rights of the parties,but also implements the obligation of the relevant subject to assist the investigation.In terms of actual effect,the system has achieved good results since its operation,which is mainly reflected in the relief of court enforcement pressure,the enhancement of the parties’ ability to collect evidence,the enhancement of the deterrence of lawyers to collect evidence,and the deepening of the cooperation between the court and other departments.The third part analyzes the difficulties and causes of the operation of the lawyer investigation order system in the civil execution procedure.Firstly,based on the current status of system operation and combined with data and cases,this paper analyzes the realistic dilemmas faced by system operation at the present stage,which mainly includes four "inadequacies",namely,insufficient coercivity of investigation order,insufficient cooperation degree of assisting subject,insufficient standardization of system text and insufficient universality of system operation.Then,the causes of the problems are analyzed from the aspects of legislation,procedure standards and mechanism.From the legislative level,the fundamental reason is that there is a legislative vacuum,the lack of guidance of superior law,and the lack of law also leads to the conflict of relevant provisions with the industry norms.From the level of procedural standards,there is no unified system,the provisions of the provinces are not consistent will lead to the smooth operation of the system,can not be standardized;From the perspective of mechanism,the linkage mechanism between judicial and administrative departments is related to system publicity and department cooperation,and the responsibility mechanism and protection mechanism are related to the investigation of responsibility and rights protection in the process of investigation.The fourth part aims at the problems and reasons of the operation of the lawyer investigation order system in the civil execution procedure and puts forward corresponding suggestions to improve the system.First of all,we should legalize the system of lawyer investigation order,and put forward some suggestions to amend relevant laws to add related clauses of lawyer investigation order.Secondly,it absorbs the experience of legislation and application of lawyer investigation order in the execution procedure of provinces,unifies the relevant procedure standards,and standardizes the issuance and use of the national lawyer investigation order system.Moreover,we should improve the cooperation mechanism between the judicial and administrative departments,strengthen the communication and cooperation between the court and other departments during the legislation and implementation stage of the lawyer investigation order,and open up a green channel for the lawyer investigation and collection of evidence.In addition,improve the relevant responsibility mechanism of the lawyer investigation order to crack down on the abuse of the lawyer investigation order and the behavior of the obligor to assist the investigation who does not fulfill the duty of assistance;Finally,improve the protection system of lawyers’ investigation order,on the one hand to protect the parties’ rights to investigate and collect evidence,on the other hand to avoid infringement of the rights and interests of the investigated.