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- April 21, 2011, 10:29:05 AMThe implementation of the civil legal system deficiencies and improve
Abstract: civilian implementation is the use of state coercive power of enforcement authority, in accordance with statutory requirements and procedures to determine the effect of claims of legal instruments to be carried out in public remedy of judicial activities. Civilian implementation of the system is an important and indispensable rule of law one of the legal system, effective implementation of the civil justice system to establish the country's prestige and deterrence, is to achieve a necessary prerequisite for the rule of law state. Through the implementation of the civil legal system analysis, pointed out that the implementation of the existing legal system of civil procedure in the implementation of launch, implementation jurisdiction, commissioned, property survey, the implementation of reconciliation, assist in the implementation and enforcement of such relief system in terms of defects, and through the United Kingdom , United States, Germany, France, Japan and Russia and other countries in the review of civil enforcement regime, combined with the implementation of civil practice, improving the implementation of the civil legal system recommendations. Finally, a sound system of civil enforcement of the law, should be able to protect the legitimate interests of creditors, according to law, as soon as possible, avoiding the debt malicious person can have a huge deterrent, so that failure to fulfill obligations debt who conscientiously fulfill their obligations to pay more than much larger cost, in addition, the ability of the debtor does not perform, but also on the basis of in accordance with the law reflects the humanistic care. Keywords: civil law enforcement system defects improve directory Introduction ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 3 First, the implementation of the existing legal system Civil defects ... ... ... ... ... ... ... ... ... ... ... ... ... ... 3 (a) launched the program implementation is incompatible with the objective reality ... ... ... ... ... ... ... ... ... ... ... ... 4 1, no time limit established this system of application for enforcement 2, on the application for enforcement and there is no strict distinction between the implementation of the provisions of the transfer 3, apply for suspension of execution time, the interrupt system, the lack of (b) in the implementation of the legislation of the jurisdiction of defects ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 5 1, provides reasonable , contrary to the efficiency of the implementation of laws and principles of 2, regulate the jurisdiction of gaps, the program running hard 3, the lack of provisions under the jurisdiction level, uneven distribution of cases (c) of the civilian implementation of the notification system disadvantages ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 5 1, being deprived of property rights holders to obtain ownership rights 2, there is no legal basis to change the time of performance, there are many difficulties in the effective delivery 3 often serve to remind the debtor transfers property , the exercise of executive power is split, a contradiction is difficult to reconcile 2, debtor property verification difficult 3, commissioned by the Court and the Court's attention to a matter of degree entrusted (e) the lack of a complete property survey to be executed system ... ... ... ... ... ... ... ... ... ... ... ... ... ... 7 1, provided by the applicant for enforcement of property condition or clue debtor 2, report on their financial status through the debtor 3 human Civil Home Survey executed by an application or authority property (f) there is unreasonable enforcement of a settlement system ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 7 1, the implementation of the legal effect of the settlement agreement 2, apply for restoration of effective legal instruments in the original duration of 3, the implementation of the settlement agreement can not be ignored other issues (g) assist in the implementation of the system should be strengthened , there is no standard of judicial conflict resolution mechanisms ... ... ... ... 8 (h) relief system implementation there are many oversights ... ... ... ... ... ... ... ... ... ... ... ... ... ... 9 1, procedural the absence of relief 2, on the protection of the rights of a third party entities are not fully Second, the implementation of the foreign legal system of civil Comments ... ... ... ... ... ... ... ... ... ... ... ... ... ... 9 <BR (c) Review of the Russian Civil Execution System ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 11 (d) other foreign countries, Review of Civil Execution System ... ... ... ... ... ... ... ... ... ... ... ... 11 Third, improve the concept of civil enforcement proceedings ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 11 (a) Reconstruction of the Executive launched the program ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 12 1, the implementation deadline to apply this system to establish 2, strictly regulate the civil implementation of the transfer system 3, establish the application execution time suspend, interrupt system (b) build a sound system for the implementation of jurisdiction ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 12 1, to redefine the implementation of the principle of territorial jurisdiction of the case 2, a clear level of jurisdiction 3, a unified regional jurisdiction 4, establishing command jurisdiction (c) delegate the implementation of the system to improve ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 13 1, be the effective exercise of (d) by repealing the implementation of the notification system, the implementation of additional warning procedures ... ... ... ... ... ... ... ... ... 14 (e) improving the implementation of the property survey system is to strengthen the obligations and responsibilities executed ... ... ... 14 1, debtor must truthfully reporting obligations 2, executors objection application right to review and implement the right of the court investigation matched 3, further strengthen the debtor's obligations and responsibilities (vi) improve the enforcement of a settlement system, to eliminate 3, pay attention to controlling debtor property, to ensure that debt discharge 4, perfect this system, and promote the implementation of public (g) assist in improving the system, standardize judicial conflict resolution mechanisms ... ... ... ... ... ... ... ... 16 (h) improve the implementation of relief, the appeal system to establish the implementation of objection ... ... ... ... ... ... ... ... 16 1, on the procedural implementation of relief 2, on the entities on the implementation of relief (1), debtor's objection to the appeal system established (2), to establish a third party objection to the appeal system (3), the establishment of the implementation of more comprehensive review and implementation of the hearing system conclusion ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 18 References ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 20 Introduction civilian implementation is the use of state coercive power of enforcement authority, in accordance with legal conditions and procedures, established effective legal instruments Claims to be carried out in public remedy of judicial activities, generally refers to the national mandatory property of the debtor to dispose of their debts. Civilian implementation of the system is an important and indispensable rule of law one of the legal system, carrying the contents of the effective legal instruments implemented to achieve the rights of the important functions of the legitimate rights and interests. Implementation of effective civil justice system to establish the prestige of the State and deterrence, is to achieve a necessary prerequisite for the rule of law state. In China, the civilian implementation of the national Constitution and the law is an important work of the people's court, the work associated with the work of the people arising from the trial court, with the deepening of reform and opening up, cases of civil and commercial disputes gradually developed a significant increase. Because of weak rule of law, civil enforcement since the beginning of the development on the existence of institutions are not perfect, staff numbers are inadequate, the overall quality is not high deficiencies, coupled with social and commercial activities, delinquency was rampant, widespread malicious avoiding the debt and other socio-economic phenomenon, the implementation of environment is not satisfactory. The late 20th century, 80, serious damage to dignity, to a certain extent, affected the social order and stability. To address the However, due to various reasons, are still not fully get rid of People's Court civil execution is the basic guarantee of social credit relationship, there must be more comprehensive laws and regulations as a precondition. In China, the absence of civilian implementation of the nature, characteristics, and correct understanding of the less mature the legislation, the existing legal system of civil execution of many defects. To solve the This paper on the implementation of the existing legal system Civil defect analysis, drawing on foreign experience in the civil enforcement of legislation, proposed how to improve the implementation of the civil legal system, in order to solve the First, the implementation of the existing legal system Civil defect complete civilian implementation of the system, and for every legislator on the systems and measures are detailed as much as possible to make specific provisions the procedure should have a strong operational, and implementation of our current system of civil law provisions, mainly seen in the April 9, 1991 the Seventh National People's Congress adopted the fourth meeting of the . Therefore the provisions of too little, too careless, and shall also principled. In response to the urgent needs of the judicial practice, the Supreme Court has specifically developed a basis, to a certain extent, solve certain problems in implementation, but still can not meet the actual needs of the implementation, not a fundamental solution to socio-economic activities many new situations and new problems, the implementation of the existing legal system Civil defects caused these problems from a legal perspective the lack of appropriate countermeasures, this problem has been severely restricted the people's court in civil implementation. Generally speaking, the implementation of our current civil system is not perfect, more vulnerability, operability is not strong, and supporting civil implementation to adapt the legal system is also a serious lack of some important, will not small system is not yet clearly defined, and judicial practice summed up the implementation of the new method has not yet been confirmed by legislation. Some of the provisions of the basic principles of both inconsistent with the law, but also incompatible with the objective reality, obviously from the community, lag behind reality, in practice, different interpretations and often ambiguous. In addition, the implementation of our current system of civil, judicial interpretations, local regulations and the courts to enact its own rules for the implementation of much more than in the number of the law. Effect of these provisions lower level, lack of authority, influence limited in scope, difficult to play the role of legal guidance and education. And between judicial interpretation and legal requirements, local regulations, court rules and laws and judicial interpretations, and between different parts of the local laws and regulations, court rules in different courts and there is conflict between the phenomenon has seriously affected civil law enforcement and national unity. On specific issues, the implementation of the existing legal system Civil deficiencies in the following aspects: (a) The Executive launched the program is incompatible with the objective reality of two hundred and nineteenth provides that The provisions of substantive law because there is no statute of limitations from the legislative intent of starting, resulting in the In practice, parties often delayed for various reasons the implementation of the application period, resulting in the loss of the opportunity to protect their legitimate rights and interests, and the debtor are also widespread hopes of creditors within the statutory time limit did not apply for the implementation of luck, almost automatically in accordance with the period of effective legal instruments to fulfill their obligations to determine the case. Can be seen, the current implementation of the actual launch process is incompatible with the objective, can not fully protect the legitimate rights and interests. Specifically, there are several deficiencies: 1, did not apply for the implementation deadline established in the civil procedure system this system,You are not allowed to view links. Register or Login, the determined period of application for the implementation of this system, which is a party inadequate protection of legitimate rights and interests. Because of This has resulted in different practices around the courts, both courts are informed in writing and also orally informed the court adopted, did not inform the court as well. Period of application for enforcement proceedings on this system without standard, easy to make the implementation of the party delayed the application deadline. 2, the implementation of the application for enforcement and there is no strict distinction between the transfer in accordance with the provisions of different circumstances, the parties confused, the court is not easy to concrete action. To compensate for this defect, after the Supreme Court made a further judicial interpretation in the form of requirement that the effective implementation of legal instruments, the general law by the parties to submit an application with the payment of a legally effective maintenance, alimony, tending the contents of the law instruments, civil sanctions decision, and the criminal with the civil judgments or orders, mediation, transferred from the courtroom executive agencies. Although clearly the application of the provisions of the implementation and transfer of the implementation of the difference, but only as a judicial interpretation of the legal knowledge of uneven quality and the parties concerned, we naturally can not be known luxury they can master. 3, apply for suspension of execution time, the interrupt system, the lack of application execution time suspension system, the absence of interruption, to some extent limited the party applies for enforcement of the deadline. In judicial practice, some of the parties due to force majeure or other obstacles, resulting in delays in application execution time; still unaccounted for due to his creditors, with no property available for execution or implementation of the agreement reached when the application for enforcement to the court to retain the right to and suspension filing. The emergence of these cases, the courts need to apply for suspension of execution time, to confirm interruption to protect the legitimate rights and interests. However, the implementation of the limitation of the current suspension of the application, there is no clearly defined break the system, resulting in the implementation of the court the application for suspension, interruption found difficult to operate at the legal level, in practice the courts often take the registration, suspension filing, etc. there is no legal approach basis. (b) defects in the implementation of the legislation of the jurisdiction of the Executive civil jurisdiction between the courts is to determine the admissibility of the division of labor and civil rights cases, the implementation of the system, it is the civil court according to law enforcement powers to exercise the premise is civilian implementation of the important part of the program. The purpose of the establishment of the implementation of the system is governed by different courts in different cases in the appropriate division of labor between, to achieve the efficiency of the pursuit. China's implementation of legal instruments executed by the debtor has his domicile or place where the property shall have jurisdiction. This provision also from the level and geographical aspects of the present case provides for the implementation of the division of labor, but it still can not meet the status of implementation of complex, defects in its legislation gradually revealed. 1, requirement is unreasonable, contrary to the efficiency of the implementation of laws and principles. Jurisdiction to hear the case of the implementation of the court as a standard to determine the enforcement of court, court of first instance jurisdiction of the implementation of the principles of a foreign jurisdiction is different from the provisions of a significant mark. Although the Court of First Instance considered that provision is more familiar with the situation to facilitate implementation. However, property has great mobility of modern society, the domicile of the parties is often not consistent with the property location, even location of the debtor's property made after the verdict may still change. The resulting location of the property in many cases neither the jurisdiction of the courts, nor the debtor has his domicile or jurisdiction of the Court acts performed, this is undoubtedly the case for the timely and effective implementation of the system set up a barrier. Since the implementation of the court and the debtor, on the implementation of property such as the dislocation in the region, remote execution, and commissioned to become inevitable, this violent resistance to law, such cases will take Chung from protracted, difficult to guarantee the efficiency. 2, regulate the jurisdiction of gaps, the program operation difficult. on the implementation of the jurisdiction, some of the important specifications of the lack of jurisdiction, resulting in the implementation of the distribution between cases in the court misconduct, the parties apply for the implementation of poor relief in the way, the efficiency is low. , but this law does not provide solutions. In addition, the implementation of the practice of frequent objection to jurisdiction and the treatment not clearly defined. 3, the lack of level requirement under the jurisdiction of the case is unevenly distributed. While in accordance with the The jurisdiction of the courts in determining the parties did not choose the right, resulting in gaps in the trial jurisdiction extends to the implementation phase, the case did not result in a reasonable layout of shunt imbalance in the implementation of the procedure the parties are excluded, the program just is not implemented. (C) of the civilian implementation of the notification system disadvantages of , and ordered to perform within the specified period, fails to perform to enforce. that they have sufficient time to raise funds, reasonable arrangements for living or production activities. However, in the implementation of practice, such procedures often result in delays in execution time, the protection of the interests of adverse parties, the following shortcomings: 1, being deprived of property rights holders to obtain ownership rights accordance with the These provisions indicate that the implementation of measures taken before an enforcement notice to the debtor. If you do not limit specified in the notice expires, the court can not take enforcement measures. From the entry into force of the effectiveness of legal instruments, as long as the expiration of implementation identified by the applicant for execution, the court can take enforcement measures. Therefore, the enforcement notice were in fact being deprived of the right to acquire rights to property ownership. 2, there is no legal basis to change the time of performance, there are many difficulties in the effective served an enforcement notice specifies a new time limit, in fact extended the effective legal instruments to determine the performance period, this arbitrariness Not only has no legal basis for the change, but the two do not have the same limit, not only affects the seriousness of legal instruments, are likely to cause misunderstanding of the parties. If the person does not go out, some long-term or Bierbuxian, hide and seek with the implementation of the judge, not an enforcement notice served on the long-term, makes it impossible to take further enforcement measures, the case does not go on long-term implementation. Some have not received even executed as an excuse to defy the notice of execution. The situation has led to effective implementation of legal instruments is difficult to be effective, long-term rights of the legitimate rights and interests can not be achieved. 3, often serve to remind the debtor transfers property Ruling parties in some cases even in the case after the commencement of the trial stage, to avoid litigation or even moving to hide debt, when the case enters the execution, the court found debtor when racking hardships, they must first issue an enforcement notice for again to avoid the implementation of a chance. And some executed in the implementation of the unexpired period of notice in person answered, but the sly transfer, sell or hide property. From this, an enforcement notice to remind the debtor actually transfer property and to avoid execution, resulting in effective implementation of legal instruments is difficult, given an undue loss of rights holders. (IV) commissioned the implementation of the system is not perfect, have little effect in practice is the implementation of commissioned the debtor or the court in its jurisdiction other than the implementation of property cases, entrusted to the local People's Court A system of enforcement. Commissioned the establishment of the system, which was intended to optimize the implementation of mechanisms to reduce costly off-site implementation, in fact, does exist in practice to address the acute contradiction between the implementation of some of the issues and play a certain role. However, due to defects in the system design itself, the court commissioned the implementation of the system between the impossible and some are too strict, some are too general and weak, commission, entrusted with many of the cases are not practical implementation. Commissioned to apply for a lack of trust executor, rather opinions, some courts have also entrusted the implementation of a lack of confidence. Always, the commissioned work practice in the implementation of the operability is poor, with little success, against the setting up of legislators mind. The reasons include the following: 1, the exercise of executive power is divided, is difficult to reconcile a contradiction. Commissioned in the executive power is entrusted to the Court and the Court split the exercise of fiduciary entrusted the implementation of the court in the exercise of the right of reservation, often with the trustee the court's handling of the case of disagreement, and it is difficult to convince each other is difficult to reconcile the contradictions caused by . 2, debtor property verification difficult. Implementation of practice in commissioning, verification of property subject to enforcement of the debtor has been plagued by difficulties in the courts and litigation. Commissioned the case to enforcement is often stranger, and generally difficult to provide timely and effective debtor hidden clues to the whereabouts and property, which the court can not perform the work entrusted to form a good match. 3, commissioned by the Court and the Court's emphasis fiduciary issues. After the implementation of the case out of commission, and some courts do not often entrusted to the trustee the court about the status of implementation of the case, reminders, coordination, necessary procedures for the work is nobody cares. And because not entrusted their cases before the courts, and some are not entrusted with the implementation of the relevant court considers whether their own business, often after receiving the case is not the time required to implement and reply, and no commission has repeatedly urged the court result. Commissioned due to lack of necessary supervision and monitoring measures, resulting in fiduciary entrusted to the Court and the Court of buck-passing, passing, leading to long delay in cases entrusted to the Executive failed to enforce. (e) the lack of a comprehensive survey system is the implementation of property civilian implementation of the main property of the execution. After the start of the implementation of procedures to carry out the implementation of investigations into the situation of the debtor's property is a prerequisite for the smooth implementation of the conditions, but also the rights of creditors to achieve its premise. In practice, this approach accounted for a large proportion. But look at the actual results are not satisfactory. Property status of the debtor generally opaque, application for enforcement people to realize their own interests, do everything possible to obtain the debtor's property status ideas or clues, but are often not clear and specific, and sometimes even hearsay evidence is not true. Eager to apply for holders of public authority with a certain look for their property to facilitate the debtor, requesting the implementation of investigation order issued by a court to assist the requirements are very strong. 2, report their financial status through the debtor. From the implementation of practice, the debtor is generally not high level of integrity, to take the initiative to report on the implementation of the court the way their property is more rare conditions, the property by the debtor in this way and Zhijie cases, mostly executed with a certain of its ability to perform, but also by the enforcement of court subpoena requested property status of its report and was told the legal consequences of the situation. In addition, the presence in the region a better credit awareness and law enforcement environment, there is a certain relationship.
Abstract: civilian implementation is the use of state coercive power of enforcement authority, in accordance with statutory requirements and procedures to determine the effect of claims of legal instruments to be carried out in public remedy of judicial activities. Civilian implementation of the system is an important and indispensable rule of law one of the legal system, effective implementation of the civil justice system to establish the country's prestige and deterrence, is to achieve a necessary prerequisite for the rule of law state. Through the implementation of the civil legal system analysis, pointed out that the implementation of the existing legal system of civil procedure in the implementation of launch, implementation jurisdiction, commissioned, property survey, the implementation of reconciliation, assist in the implementation and enforcement of such relief system in terms of defects, and through the United Kingdom , United States, Germany, France, Japan and Russia and other countries in the review of civil enforcement regime, combined with the implementation of civil practice, improving the implementation of the civil legal system recommendations. Finally, a sound system of civil enforcement of the law, should be able to protect the legitimate interests of creditors, according to law, as soon as possible, avoiding the debt malicious person can have a huge deterrent, so that failure to fulfill obligations debt who conscientiously fulfill their obligations to pay more than much larger cost, in addition, the ability of the debtor does not perform, but also on the basis of in accordance with the law reflects the humanistic care. Keywords: civil law enforcement system defects improve directory Introduction ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 3 First, the implementation of the existing legal system Civil defects ... ... ... ... ... ... ... ... ... ... ... ... ... ... 3 (a) launched the program implementation is incompatible with the objective reality ... ... ... ... ... ... ... ... ... ... ... ... 4 1, no time limit established this system of application for enforcement 2, on the application for enforcement and there is no strict distinction between the implementation of the provisions of the transfer 3, apply for suspension of execution time, the interrupt system, the lack of (b) in the implementation of the legislation of the jurisdiction of defects ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 5 1, provides reasonable , contrary to the efficiency of the implementation of laws and principles of 2, regulate the jurisdiction of gaps, the program running hard 3, the lack of provisions under the jurisdiction level, uneven distribution of cases (c) of the civilian implementation of the notification system disadvantages ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 5 1, being deprived of property rights holders to obtain ownership rights 2, there is no legal basis to change the time of performance, there are many difficulties in the effective delivery 3 often serve to remind the debtor transfers property , the exercise of executive power is split, a contradiction is difficult to reconcile 2, debtor property verification difficult 3, commissioned by the Court and the Court's attention to a matter of degree entrusted (e) the lack of a complete property survey to be executed system ... ... ... ... ... ... ... ... ... ... ... ... ... ... 7 1, provided by the applicant for enforcement of property condition or clue debtor 2, report on their financial status through the debtor 3 human Civil Home Survey executed by an application or authority property (f) there is unreasonable enforcement of a settlement system ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 7 1, the implementation of the legal effect of the settlement agreement 2, apply for restoration of effective legal instruments in the original duration of 3, the implementation of the settlement agreement can not be ignored other issues (g) assist in the implementation of the system should be strengthened , there is no standard of judicial conflict resolution mechanisms ... ... ... ... 8 (h) relief system implementation there are many oversights ... ... ... ... ... ... ... ... ... ... ... ... ... ... 9 1, procedural the absence of relief 2, on the protection of the rights of a third party entities are not fully Second, the implementation of the foreign legal system of civil Comments ... ... ... ... ... ... ... ... ... ... ... ... ... ... 9 <BR (c) Review of the Russian Civil Execution System ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 11 (d) other foreign countries, Review of Civil Execution System ... ... ... ... ... ... ... ... ... ... ... ... 11 Third, improve the concept of civil enforcement proceedings ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 11 (a) Reconstruction of the Executive launched the program ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 12 1, the implementation deadline to apply this system to establish 2, strictly regulate the civil implementation of the transfer system 3, establish the application execution time suspend, interrupt system (b) build a sound system for the implementation of jurisdiction ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 12 1, to redefine the implementation of the principle of territorial jurisdiction of the case 2, a clear level of jurisdiction 3, a unified regional jurisdiction 4, establishing command jurisdiction (c) delegate the implementation of the system to improve ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 13 1, be the effective exercise of (d) by repealing the implementation of the notification system, the implementation of additional warning procedures ... ... ... ... ... ... ... ... ... 14 (e) improving the implementation of the property survey system is to strengthen the obligations and responsibilities executed ... ... ... 14 1, debtor must truthfully reporting obligations 2, executors objection application right to review and implement the right of the court investigation matched 3, further strengthen the debtor's obligations and responsibilities (vi) improve the enforcement of a settlement system, to eliminate 3, pay attention to controlling debtor property, to ensure that debt discharge 4, perfect this system, and promote the implementation of public (g) assist in improving the system, standardize judicial conflict resolution mechanisms ... ... ... ... ... ... ... ... 16 (h) improve the implementation of relief, the appeal system to establish the implementation of objection ... ... ... ... ... ... ... ... 16 1, on the procedural implementation of relief 2, on the entities on the implementation of relief (1), debtor's objection to the appeal system established (2), to establish a third party objection to the appeal system (3), the establishment of the implementation of more comprehensive review and implementation of the hearing system conclusion ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 18 References ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 20 Introduction civilian implementation is the use of state coercive power of enforcement authority, in accordance with legal conditions and procedures, established effective legal instruments Claims to be carried out in public remedy of judicial activities, generally refers to the national mandatory property of the debtor to dispose of their debts. Civilian implementation of the system is an important and indispensable rule of law one of the legal system, carrying the contents of the effective legal instruments implemented to achieve the rights of the important functions of the legitimate rights and interests. Implementation of effective civil justice system to establish the prestige of the State and deterrence, is to achieve a necessary prerequisite for the rule of law state. In China, the civilian implementation of the national Constitution and the law is an important work of the people's court, the work associated with the work of the people arising from the trial court, with the deepening of reform and opening up, cases of civil and commercial disputes gradually developed a significant increase. Because of weak rule of law, civil enforcement since the beginning of the development on the existence of institutions are not perfect, staff numbers are inadequate, the overall quality is not high deficiencies, coupled with social and commercial activities, delinquency was rampant, widespread malicious avoiding the debt and other socio-economic phenomenon, the implementation of environment is not satisfactory. The late 20th century, 80, serious damage to dignity, to a certain extent, affected the social order and stability. To address the However, due to various reasons, are still not fully get rid of People's Court civil execution is the basic guarantee of social credit relationship, there must be more comprehensive laws and regulations as a precondition. In China, the absence of civilian implementation of the nature, characteristics, and correct understanding of the less mature the legislation, the existing legal system of civil execution of many defects. To solve the This paper on the implementation of the existing legal system Civil defect analysis, drawing on foreign experience in the civil enforcement of legislation, proposed how to improve the implementation of the civil legal system, in order to solve the First, the implementation of the existing legal system Civil defect complete civilian implementation of the system, and for every legislator on the systems and measures are detailed as much as possible to make specific provisions the procedure should have a strong operational, and implementation of our current system of civil law provisions, mainly seen in the April 9, 1991 the Seventh National People's Congress adopted the fourth meeting of the . Therefore the provisions of too little, too careless, and shall also principled. In response to the urgent needs of the judicial practice, the Supreme Court has specifically developed a basis, to a certain extent, solve certain problems in implementation, but still can not meet the actual needs of the implementation, not a fundamental solution to socio-economic activities many new situations and new problems, the implementation of the existing legal system Civil defects caused these problems from a legal perspective the lack of appropriate countermeasures, this problem has been severely restricted the people's court in civil implementation. Generally speaking, the implementation of our current civil system is not perfect, more vulnerability, operability is not strong, and supporting civil implementation to adapt the legal system is also a serious lack of some important, will not small system is not yet clearly defined, and judicial practice summed up the implementation of the new method has not yet been confirmed by legislation. Some of the provisions of the basic principles of both inconsistent with the law, but also incompatible with the objective reality, obviously from the community, lag behind reality, in practice, different interpretations and often ambiguous. In addition, the implementation of our current system of civil, judicial interpretations, local regulations and the courts to enact its own rules for the implementation of much more than in the number of the law. Effect of these provisions lower level, lack of authority, influence limited in scope, difficult to play the role of legal guidance and education. And between judicial interpretation and legal requirements, local regulations, court rules and laws and judicial interpretations, and between different parts of the local laws and regulations, court rules in different courts and there is conflict between the phenomenon has seriously affected civil law enforcement and national unity. On specific issues, the implementation of the existing legal system Civil deficiencies in the following aspects: (a) The Executive launched the program is incompatible with the objective reality of two hundred and nineteenth provides that The provisions of substantive law because there is no statute of limitations from the legislative intent of starting, resulting in the In practice, parties often delayed for various reasons the implementation of the application period, resulting in the loss of the opportunity to protect their legitimate rights and interests, and the debtor are also widespread hopes of creditors within the statutory time limit did not apply for the implementation of luck, almost automatically in accordance with the period of effective legal instruments to fulfill their obligations to determine the case. Can be seen, the current implementation of the actual launch process is incompatible with the objective, can not fully protect the legitimate rights and interests. Specifically, there are several deficiencies: 1, did not apply for the implementation deadline established in the civil procedure system this system,You are not allowed to view links. Register or Login, the determined period of application for the implementation of this system, which is a party inadequate protection of legitimate rights and interests. Because of This has resulted in different practices around the courts, both courts are informed in writing and also orally informed the court adopted, did not inform the court as well. Period of application for enforcement proceedings on this system without standard, easy to make the implementation of the party delayed the application deadline. 2, the implementation of the application for enforcement and there is no strict distinction between the transfer in accordance with the provisions of different circumstances, the parties confused, the court is not easy to concrete action. To compensate for this defect, after the Supreme Court made a further judicial interpretation in the form of requirement that the effective implementation of legal instruments, the general law by the parties to submit an application with the payment of a legally effective maintenance, alimony, tending the contents of the law instruments, civil sanctions decision, and the criminal with the civil judgments or orders, mediation, transferred from the courtroom executive agencies. Although clearly the application of the provisions of the implementation and transfer of the implementation of the difference, but only as a judicial interpretation of the legal knowledge of uneven quality and the parties concerned, we naturally can not be known luxury they can master. 3, apply for suspension of execution time, the interrupt system, the lack of application execution time suspension system, the absence of interruption, to some extent limited the party applies for enforcement of the deadline. In judicial practice, some of the parties due to force majeure or other obstacles, resulting in delays in application execution time; still unaccounted for due to his creditors, with no property available for execution or implementation of the agreement reached when the application for enforcement to the court to retain the right to and suspension filing. The emergence of these cases, the courts need to apply for suspension of execution time, to confirm interruption to protect the legitimate rights and interests. However, the implementation of the limitation of the current suspension of the application, there is no clearly defined break the system, resulting in the implementation of the court the application for suspension, interruption found difficult to operate at the legal level, in practice the courts often take the registration, suspension filing, etc. there is no legal approach basis. (b) defects in the implementation of the legislation of the jurisdiction of the Executive civil jurisdiction between the courts is to determine the admissibility of the division of labor and civil rights cases, the implementation of the system, it is the civil court according to law enforcement powers to exercise the premise is civilian implementation of the important part of the program. The purpose of the establishment of the implementation of the system is governed by different courts in different cases in the appropriate division of labor between, to achieve the efficiency of the pursuit. China's implementation of legal instruments executed by the debtor has his domicile or place where the property shall have jurisdiction. This provision also from the level and geographical aspects of the present case provides for the implementation of the division of labor, but it still can not meet the status of implementation of complex, defects in its legislation gradually revealed. 1, requirement is unreasonable, contrary to the efficiency of the implementation of laws and principles. Jurisdiction to hear the case of the implementation of the court as a standard to determine the enforcement of court, court of first instance jurisdiction of the implementation of the principles of a foreign jurisdiction is different from the provisions of a significant mark. Although the Court of First Instance considered that provision is more familiar with the situation to facilitate implementation. However, property has great mobility of modern society, the domicile of the parties is often not consistent with the property location, even location of the debtor's property made after the verdict may still change. The resulting location of the property in many cases neither the jurisdiction of the courts, nor the debtor has his domicile or jurisdiction of the Court acts performed, this is undoubtedly the case for the timely and effective implementation of the system set up a barrier. Since the implementation of the court and the debtor, on the implementation of property such as the dislocation in the region, remote execution, and commissioned to become inevitable, this violent resistance to law, such cases will take Chung from protracted, difficult to guarantee the efficiency. 2, regulate the jurisdiction of gaps, the program operation difficult. on the implementation of the jurisdiction, some of the important specifications of the lack of jurisdiction, resulting in the implementation of the distribution between cases in the court misconduct, the parties apply for the implementation of poor relief in the way, the efficiency is low. , but this law does not provide solutions. In addition, the implementation of the practice of frequent objection to jurisdiction and the treatment not clearly defined. 3, the lack of level requirement under the jurisdiction of the case is unevenly distributed. While in accordance with the The jurisdiction of the courts in determining the parties did not choose the right, resulting in gaps in the trial jurisdiction extends to the implementation phase, the case did not result in a reasonable layout of shunt imbalance in the implementation of the procedure the parties are excluded, the program just is not implemented. (C) of the civilian implementation of the notification system disadvantages of , and ordered to perform within the specified period, fails to perform to enforce. that they have sufficient time to raise funds, reasonable arrangements for living or production activities. However, in the implementation of practice, such procedures often result in delays in execution time, the protection of the interests of adverse parties, the following shortcomings: 1, being deprived of property rights holders to obtain ownership rights accordance with the These provisions indicate that the implementation of measures taken before an enforcement notice to the debtor. If you do not limit specified in the notice expires, the court can not take enforcement measures. From the entry into force of the effectiveness of legal instruments, as long as the expiration of implementation identified by the applicant for execution, the court can take enforcement measures. Therefore, the enforcement notice were in fact being deprived of the right to acquire rights to property ownership. 2, there is no legal basis to change the time of performance, there are many difficulties in the effective served an enforcement notice specifies a new time limit, in fact extended the effective legal instruments to determine the performance period, this arbitrariness Not only has no legal basis for the change, but the two do not have the same limit, not only affects the seriousness of legal instruments, are likely to cause misunderstanding of the parties. If the person does not go out, some long-term or Bierbuxian, hide and seek with the implementation of the judge, not an enforcement notice served on the long-term, makes it impossible to take further enforcement measures, the case does not go on long-term implementation. Some have not received even executed as an excuse to defy the notice of execution. The situation has led to effective implementation of legal instruments is difficult to be effective, long-term rights of the legitimate rights and interests can not be achieved. 3, often serve to remind the debtor transfers property Ruling parties in some cases even in the case after the commencement of the trial stage, to avoid litigation or even moving to hide debt, when the case enters the execution, the court found debtor when racking hardships, they must first issue an enforcement notice for again to avoid the implementation of a chance. And some executed in the implementation of the unexpired period of notice in person answered, but the sly transfer, sell or hide property. From this, an enforcement notice to remind the debtor actually transfer property and to avoid execution, resulting in effective implementation of legal instruments is difficult, given an undue loss of rights holders. (IV) commissioned the implementation of the system is not perfect, have little effect in practice is the implementation of commissioned the debtor or the court in its jurisdiction other than the implementation of property cases, entrusted to the local People's Court A system of enforcement. Commissioned the establishment of the system, which was intended to optimize the implementation of mechanisms to reduce costly off-site implementation, in fact, does exist in practice to address the acute contradiction between the implementation of some of the issues and play a certain role. However, due to defects in the system design itself, the court commissioned the implementation of the system between the impossible and some are too strict, some are too general and weak, commission, entrusted with many of the cases are not practical implementation. Commissioned to apply for a lack of trust executor, rather opinions, some courts have also entrusted the implementation of a lack of confidence. Always, the commissioned work practice in the implementation of the operability is poor, with little success, against the setting up of legislators mind. The reasons include the following: 1, the exercise of executive power is divided, is difficult to reconcile a contradiction. Commissioned in the executive power is entrusted to the Court and the Court split the exercise of fiduciary entrusted the implementation of the court in the exercise of the right of reservation, often with the trustee the court's handling of the case of disagreement, and it is difficult to convince each other is difficult to reconcile the contradictions caused by . 2, debtor property verification difficult. Implementation of practice in commissioning, verification of property subject to enforcement of the debtor has been plagued by difficulties in the courts and litigation. Commissioned the case to enforcement is often stranger, and generally difficult to provide timely and effective debtor hidden clues to the whereabouts and property, which the court can not perform the work entrusted to form a good match. 3, commissioned by the Court and the Court's emphasis fiduciary issues. After the implementation of the case out of commission, and some courts do not often entrusted to the trustee the court about the status of implementation of the case, reminders, coordination, necessary procedures for the work is nobody cares. And because not entrusted their cases before the courts, and some are not entrusted with the implementation of the relevant court considers whether their own business, often after receiving the case is not the time required to implement and reply, and no commission has repeatedly urged the court result. Commissioned due to lack of necessary supervision and monitoring measures, resulting in fiduciary entrusted to the Court and the Court of buck-passing, passing, leading to long delay in cases entrusted to the Executive failed to enforce. (e) the lack of a comprehensive survey system is the implementation of property civilian implementation of the main property of the execution. After the start of the implementation of procedures to carry out the implementation of investigations into the situation of the debtor's property is a prerequisite for the smooth implementation of the conditions, but also the rights of creditors to achieve its premise. In practice, this approach accounted for a large proportion. But look at the actual results are not satisfactory. Property status of the debtor generally opaque, application for enforcement people to realize their own interests, do everything possible to obtain the debtor's property status ideas or clues, but are often not clear and specific, and sometimes even hearsay evidence is not true. Eager to apply for holders of public authority with a certain look for their property to facilitate the debtor, requesting the implementation of investigation order issued by a court to assist the requirements are very strong. 2, report their financial status through the debtor. From the implementation of practice, the debtor is generally not high level of integrity, to take the initiative to report on the implementation of the court the way their property is more rare conditions, the property by the debtor in this way and Zhijie cases, mostly executed with a certain of its ability to perform, but also by the enforcement of court subpoena requested property status of its report and was told the legal consequences of the situation. In addition, the presence in the region a better credit awareness and law enforcement environment, there is a certain relationship.