Title: Research on Civil Trial Relief
1, meaning and background of the topic.
Law has the values of justice, efficiency, benefit, freedom and order.
Generally speaking, it should be the perfect combination of these values, but as far as the specific departmental law is concerned, the pursuit of value will be focused.
The function of civil trial procedure is to confirm rights, resolve disputes and take justice as its value orientation.
The function of civil trial procedure is not to confirm rights and resolve disputes, but to realize the confirmed rights on the basis of execution.
How to realize the rights confirmed by the execution basis is the fundamental task of the civil execution procedure, and its value orientation should be efficiency.
So some people think that efficiency is the first value orientation of execution.
Of course, emphasizing efficient execution cannot deny the pursuit of justice. Fairness and justice have always been the eternal theme pursued by human society. If justice is the last line of defense to safeguard social fairness and justice, then civil execution is the last line of defense to safeguard judicial justice.
Therefore, justice is also one of the basic value orientations of civil execution procedures, but it pays more attention to efficiency in execution procedures.
Because of the compulsory nature of civil trial and the inherent requirement of efficiency, it is decided that the execution measures must be rapid and timely, so the execution can only be judged by the appearance of the ruling basis.
The adjudication procedure has the characteristics of infringing the substantive rights of the parties and outsiders.
There must be a conflict between the efficiency pursued by adjudication and the fair protection of the legitimate rights and interests of the parties outside the case.
Ruling defect is the product of conflict.
But efficiency is based on justice. If efficiency goes beyond justice, there is only speed.
As a procedural device to correct the flawed ruling behavior in the execution procedure and solve the rights and obligations disputes between interested parties, the civil ruling relief procedure first corrects the flawed ruling behavior, protects the legitimate rights and interests of the parties and interested parties from infringement, and urges the executing organ to legally and reasonably execute it.
Namely, rectification and relief.
Secondly, solve disputes and disputes arising in the process of adjudication, including procedural disputes and substantive disputes, remove obstacles to program execution according to law, and ensure the smooth implementation of the program.
Finally, promote judicial justice and improve people's trust in the judiciary.
The value orientation of civil execution relief procedure still lies in the pursuit of justice by efficiency, and justice should be emphasized in the dialectical relationship between efficiency and justice.
The justice of civil trial relief procedure includes procedural justice and substantive justice. It is necessary to adhere to the neutrality of judges, equality of parties, participation in procedures and openness of procedures, and ensure that executors and judges independently review and hear illegal and improper referee behaviors in the adjudication process.
Ensure that the exercise of the parties' right to relief is not impaired or suppressed, ensure that the civil trial relief system is complete, and ensure that judges can accurately determine the facts and correctly apply the law.
In terms of procedural efficiency, we should try our best to shorten the period of civil execution relief, simplify the procedures of civil execution relief, improve the efficiency of relief, and ensure that the parties can get execution relief in time.
2. Abstract/research basis
As early as 1994, domestic scholars pointed out that China's litigation preservation system is not perfect in object, and suggested that behavior should be included in the scope of litigation relief, but there are many provisions on litigation preservation.
In addition, some scholars have analyzed and evaluated the property relief and pre-execution system in China's civil litigation system, and put forward a perfect idea.
With China's accession to the WTO, when formulating the special maritime procedural law and amending the intellectual property law (patent law, trademark law, copyright law, etc.), China introduced legal systems similar to those of relevant foreign laws, such as the establishment of maritime injunction and interim measures before litigation. ).
Theoretical circles have also made a lot of discussions on the new changes in legislation, such as: On the injunction system in intellectual property litigation (Chengli Zhang, Journal of Social Sciences, Jiamusi University, No.5, 2003), Research on the injunction system in the United States-with comments on the temporary injunction system in intellectual property litigation in China (Li Lan, Science and Law, No.2, 2003),
A brief analysis of the similarities and differences between maritime compulsion and Mariva's prohibition (Yedda Chiu) and the prohibition relief in American trade secret law (Peng, China Private Law Network).
To sum up, there are mainly the following views on how to improve the temporary relief measures in China's civil litigation: First, on the basis of maintaining the existing property relief and implementing it first, establish a behavioral relief system to make it a parallel system with the former two;
Second, according to the direct purpose of temporary relief measures, temporary relief measures in civil litigation are divided into two types: preservation measures and temporary state measures.
Thirdly, the injunction in maritime litigation is introduced into general civil litigation, and at the same time, several parallel systems of property preservation, behavior preservation, injunction and advance payment are established.
Step 3 refer to
[1] Li Hao, ed. Compulsory Law, Xiamen University Press, 2nd edition, 2005.
[2] Tong: "Research on Civil Enforcement Power", Law Press, 2004, the first 1 version.
[3] Huang Jinlong: "Practical Analysis of Provisions on Several Issues of People's Court Enforcement", China Legal Publishing House, 1 Edition, 2000.
[4] Xie Huai translation: "Federal German Civil Procedure Law", Law Press, 1984.
[5] Yu Xifu, editor-in-chief: Innovation and Contention of Civil Execution System, People's Court Press, 1 Edition, 2003.
[6] Qi, editor-in-chief: Civil Procedure Law, Xiamen University Press, 2nd edition, March 2002.
[7] Xiao Jianguo, editor-in-chief: Theory of Civil Procedure Value, Renmin University of China Press, 2000.
[8] Kim
Environmental Tort and Civil Relief —— Also on the Problems in Environmental Legislation.
China environmental science [J], 1997 No.3: 38 pages.
[9] Qiu Congzhi.
Public hazards and environmental rights.
Taiwan Province Province: Law Review [J], Vol.42, No.65438 +0: 58.
4. Outline of the thesis
1 Introduction
1. 1 the purpose and significance of civil trial relief
1. 1. 1 the purpose of civil trial relief
1. 1.2 the significance of civil adjudication relief
1.2 characteristics of civil trial relief in China
1.3 Research Status of Civil Trial Relief
1.3. 1 International Research Status of Civil Trial Relief
1.3.2 Research Status of Civil Trial Relief in China
1.4 the basic idea of this paper
2 the basic theory of civil trial relief
2. 1 Connotation and value of civil trial relief
2.2 Classification of civil trial relief
2.3 the reasons for the existence of civil trial relief
2.4 the effectiveness of civil adjudication relief
3. Overseas investigation of civil trial relief
3. 1 Japanese civil adjudication relief
3.2 German Civil Adjudication Relief
3.3 French Civil Adjudication Relief
3.4 Civil Adjudication Relief
Defects and construction measures of civil trial relief in the four countries
4. 1 Defects of civil trial relief
4. 1. 1 Lack of debtor's relief
4. 1.2 Lack of objection system for outsiders' execution
4. 1.3 There is no comprehensive procedural guarantee in the process of civil trial.
4.2 the construction of civil trial relief measures in China
4.2. 1 Procedural award relief
4.2.2 Substantive award relief
5. Theoretical basis, research methods and research contents of this paper.
The civil trial relief system is one of the basic designs of the civil litigation system and an organic part of the civil litigation. Its important position in the civil litigation system determines the necessity and usefulness of studying it.
By analyzing the basic theory of civil trial relief, this paper expounds the value, classification, existing reasons and effectiveness of civil trial relief in detail, draws lessons from the successful experience of Japanese, German, French and Taiwan Province, and puts forward the shortcomings of China's current civil trial relief system from the basic connotation of civil trial.
Therefore, it is the main content of this paper to put forward the relevant countermeasures of procedural adjudication relief and substantive adjudication relief and improve them.
On the basis of systematic and comprehensive research on the theory of civil trial relief, this paper puts civil trial relief under the social background and discusses the value of its theory itself to affirm its rationality and value significance in the real society.
6. Research status and possible problems
On the basis of studying and combing the theory of civil trial relief, this paper integrates and further summarizes the practical significance of civil trial relief to society.
1. Research focus
On the basis of fully and reasonably drawing lessons from the theoretical achievements of civil trial relief at home and abroad, this paper focuses on the content of civil trial relief thought, and analyzes and summarizes the civil trial relief in Japanese, German, French and Taiwan Province, which is the focus of this paper.
2. Difficulties in research
The deficiency of civil trial relief in China is the difficulty of this paper.
3. Research and innovation
Through the interpretation of civil trial relief, this paper explores the practical application measures of civil trial relief in order to solve social practical problems at home and abroad.
7. Expected results
On the basis of theoretical research on civil execution, civil execution power and civil execution relief, this paper draws lessons from the experience of relevant execution relief systems in foreign countries and Taiwan Province, analyzes the defects existing in China's execution relief, and on this basis, puts forward some measures to improve China's civil execution relief system.
With the development of power restriction theory, two modes have been formed. One is to restrict power by power, that is, to try to form a benign self-control mechanism within the construction of state power to prevent the emergence of autocracy and centralization.
The second is to restrict power with rights, that is, to empower citizens to restrict state power.
Specifically, in the process of civil adjudication, giving the parties and interested parties the right to obtain adjudication relief in the adjudication procedure sets the necessary limits for compulsory adjudication and maintains the internal balance of the state power system.
8, paper writing schedule
20 15.05-20 15.06 conference
20 15.06-20 15.07 determine the topic of the paper.
20 15.07-20 16.02 submit the first draft of the opening report.
20 16.02-20 16.06 Submit the first draft of the paper.
20 16.07-20 16.08 was finalized.
20 16.08-20 16.09 thesis defense