Causes and countermeasures of difficulty in civil execution

Civil execution is a legal way to realize civil rights. From the perspective of the starting mode of execution behavior, civil execution can be divided into conscious execution and compulsory execution.

First, the current situation of civil execution in China

Difficulty in execution refers to the phenomenon that the people's court can conditionally execute legal documents that have already taken legal effect, but it is impossible or difficult to achieve due to the influence of subjective and objective factors. At present, the main manifestations of "execution difficulty" can be summarized as four sentences: "it is difficult to find the executed person, to find the property of the executed person, to assist the executed person, and to move the property of the executed person." The court's "difficulty in execution" is the focus of general concern from all walks of life, and it is also the difficulty of court trial work. When the judgment of the people's court is delivered to the parties, it is difficult to realize the rights and obligations stipulated in the effective judgment for various reasons.

Civil execution is a legal way to realize civil rights. From the perspective of the starting mode of execution behavior, civil execution can be divided into conscious execution and compulsory execution. The former is an act that the person subjected to execution voluntarily performs within the time limit stipulated by the effective legal documents, and it is a normal procedural state before the end of civil litigation, which has the characteristics of low cost and high efficiency; The latter is a passive execution behavior after the person subjected to execution begins to execute the application procedure after the expiration of the time limit stipulated in the effective legal document. It is an abnormal procedural state before the end of civil litigation, which requires higher cost than conscious execution and is the legal consequence of unconscious execution. Generally speaking, the higher the degree of rule of law, the greater the proportion of consciously executed cases in the whole civil execution. However, as far as the current situation of civil execution in China is concerned, although the rule of law is constantly advancing, the rate of conscious execution is not satisfactory, which brings a lot of inconvenience to the execution work and is an important factor causing the social phenomenon of "difficult execution".

Second, the harmfulness of civil "difficulty in execution"

In a country ruled by law, law is the highest code of conduct of a country. On the one hand, whether the law can be effectively enforced is the most important criterion to measure a government's ability to govern state affairs, so the failure to enforce the law should be regarded as a great shame for the government; On the other hand, whether citizens abide by the law is also a watershed to distinguish whether a country or a nation is barbaric, so failure to enforce legal judgments is detrimental to the overall image of the country and the nation.

The harmful consequences of ineffective enforcement of effective legal judgments are bound to be more and more legal white bars and confusion. Facts have proved that the harmfulness of the failure to effectively enforce legal judgments is multifaceted and multi-level.

(1) Damage to the parties concerned

Failure to execute a legal judgment is not only a direct loss for the parties with a criminal record or case value calculation, but also includes the following losses: First, the direct cost of debt collection; Second, the "opportunity loss" that affects other activities because of debt collection; Thirdly, the fatigue and boredom caused by wasting time and energy is already the mental damage caused by the emotional loss caused by failing to achieve the goal.

(2) damage to the authority

As far as the power organs are concerned, they are not only damaged by people accusing the law enforcement organs of inefficiency, but also include: first, the authority and dignity of the law enforcement organs are damaged because the losing party refuses to execute the judgment, and the judicial justice and court image are also damaged; Second, it is suspected and accused by corruption and incompetence; Third, the whole power organ faces the blame of poor supervision; Fourth, distrust of the law will be passed on to disappointment with the party and the government.

(C) damage to the "universality" of the whole society

Under the condition of market economy, the economic role of each natural person or legal person is multiple. He may be a creditor or a debtor. If his rights as a creditor are not protected, it is difficult to expect him to undertake the obligations of the debtor wholeheartedly, then the breach of contract will spread rapidly like an infectious disease, and even lead to vicious violence, which will affect the overall situation of social stability.

It can be seen that court enforcement is not only a legal issue, but also a social issue. If it is not solved well, it will directly affect the country's reform and development and political stability.

Third, the main reasons for the difficulty in civil execution

(A) the implementation of legislation lags behind

At present, the implementation mainly depends on the Civil Procedure Law and the Supreme People's Court's regulations on implementation. In the civil procedure law, there are only more than 30 provisions on execution. Such a small amount of capacity will inevitably lead to too principled provisions and lack of operability, and will also inevitably lead to incomplete implementation systems and lack of compliance in implementation. The Supreme People's Court's "Provisions on Several Issues Concerning the Execution of People's Courts" is also less prescriptive, more principled and less deterministic, and there are no specific provisions and effective measures for some issues. For example, it is not legally binding on the parties involved in the execution, assisting the executor and some links in the execution procedure, and there is no clear punishment for acts that interfere, obstruct or hinder the court's execution. Implementation measures, implementation methods, implementation period, applicant's proof, implementation assistance and sanctions for refusing to implement still need to be stipulated and improved.

On the whole, the efficiency spirit of the current implementation legislation is weak, and the particularity of the implementation work relative to the trial work is not recognized, and the relevant implementation norms can not meet the needs of improving the efficiency of the implementation work. At present, China has not formulated a relatively perfect compulsory law! Over the years, courts all over the country have to execute more than two or three million cases, and the situation is very different. Therefore, taking the execution procedure norms as a part of the civil procedure law, this legislative style itself limits the perfection of the execution norms. Although there are some relevant regulations and judicial interpretations, they have not changed the situation that the contents are too general, the principles are abstract and the operability is poor. The lag of legislation is the reason why it is difficult to implement.

(B) weak legal awareness

1, citizens' awareness of respecting the law is weak.

The outstanding performance is as follows: many people who have the ability to perform illegally obstruct and resist execution by dragging, leaning, hiding and fleeing; A considerable number of executed persons ignore the dignity of the law, and some even besiege and beat the executed persons, illegally detain the executed persons and damage the vehicles performing official duties.

2. The local party and government organs have a weak awareness of respecting the law and abiding by the law.

China has a profound concept of the rule of man, which has a feudal history of several thousand years. Since ancient times, the rule of law has been weaker than the rule of man. Moreover, in order to improve their political achievements, local party and government organs give priority protection to those key enterprises that belong to the main financial resources and large profits and taxes of local governments, so they often use power to suppress the law and replace the law with words to illegally interfere in judicial execution.

(C) the serious interference of local protectionism

At present, there are still some problems in the management system of courts and judges in China. The court is subordinate to the local government, elected by the local people's congress, responsible to and supervised by the local government. The court is directly led by the local party Committee, and the employment should be approved by the local party Committee. The court funds are directly allocated by local finance and are subject to property constraints. The local court is not a "state-established local court" but a local court. In some aspects, it is really difficult to get rid of the interference of local and departmental execution. Moreover, the existence of regional economy determines that the local economic situation is directly related to its interests, and is also inseparable from the vital interests of local people. Local leaders should naturally safeguard local interests. People, money and things in local courts belong to the local area, and it is impossible not to be dared by the local area. It is inevitable to protect local interests. Some leading cadres in some localities and departments have a weak concept of the legal system, ignore the unity and dignity of the socialist legal system, abuse their powers, substitute words for laws, and substitute power for laws, and arbitrarily interfere in the implementation of the people's courts. The execution of cases directly involves property, and some localities and departments lack the overall concept. Often, in order to avoid losses and protect vested interests, they unilaterally set up various obstacles to the court's execution, which hindered the normal development of the court's execution.

(4) Problems in the court's own work.

1, the implementation system is not perfect.

In recent ten years, the execution of people's courts has developed with a large number of civil and commercial cases. At the beginning of the development of enforcement work, a set of enforcement work system that conforms to the law of enforcement has not yet been formed. There is no internal separation of powers and restraint mechanism, and there is no overall joint force outside, and the powers and responsibilities of the executive agencies are unclear, which has aggravated the occurrence of the phenomenon of implementation difficulties to some extent. The specific manifestations are as follows: first, the division of powers and responsibilities between administrative organs and judicial organs is unclear, which leads to disputes and disputes from time to time, and there is also a phenomenon of "retrial and light sentence"; Second, the right to execute, the right to be executed and the right to execute are often exercised by the same executor, lacking effective supervision and control; Third, the relationship between the horizontal executing agencies at the same level is loose, the coordination between them is not enough, and the situation of mutual restraint often occurs; Fourth, the vertical supervision and restriction between the upper and lower executive bodies is weak and centralized.

2. Defects of executing agencies and teams.

A lot of efforts have been put into trial, but the enforcement power is insufficient, the number of enforcement cases has accumulated, and a few enforcement personnel have no time to take care of it, and the rights of the parties have not been protected by the court for a long time. At the same time, in the execution post, the person subjected to execution is unfamiliar with legal knowledge and does not know how to deal with the problem. They often simply think that execution is to collect accounts from the person subjected to execution with a judgment or mediation, which is a common misunderstanding. The comprehensive quality of the police officers can not meet the objective requirements of the implementation work, which also makes it difficult to implement today.

3. The execution cycle is too long, which leads to the sense of loss of low execution efficiency.

As we all know, the court spends a lot of time on trial, and the execution period should be shorter than the trial period, so that the parties will not feel lost. At present, many courts adopt summary procedure, and a case tried in three months (summary procedure) takes six months to be executed, which obviously increases the sense of loss of the parties.

Fourth, solve the problem of difficult civil execution.

(a) how the parties to solve the problem of execution difficulties and the collection of execution funds.

The parties can realize the rights determined by the judgment through legal channels, public rewards and social forces. There are two specific methods: one is to reward others for providing clues about the property of the executed person; Second, offer a reward to others for mediation to persuade the debtor to fulfill the obligation of judgment determination.

In the course of litigation or before litigation, if the parties find that the other party has transferred property or squandered property to avoid debts, they may apply to the people's court for property preservation. According to the provisions of Articles 92 and 93 of the Civil Procedure Law, the people's court may take compulsory measures against the property of the parties or the object of the dispute on the basis of the proposal or application of the interested parties before accepting the case or during the litigation, so as to ensure the effective execution of the judgment made in the future.

The parties may entrust an agent to apply for execution and collect the execution money. According to the relevant provisions of Articles 18 and Article 22 of the Trial Provisions, the parties may entrust others to apply to the people's court for execution and collect the execution money on their behalf. In this way, the parties can avoid getting involved in complicated execution procedures.

The parties may, with the help of the judicial organs, bring the other party who has the ability to execute but refuses to execute to justice. According to the relevant provisions of Article 84 of the Criminal Procedure Law and Article 3 13 of the Criminal Law, if a party refuses to execute after finding that the person subjected to execution has the ability to execute, he can report the case to the public security organ, the people's procuratorate or the people's court, and the judicial organ will file a case for investigation and punish the person who has constituted a crime.

(2) Formulating a unified enforcement law.

The factors that restrict execution, whether inside or outside the court, are reflected in the level of legal norms. To solve the problem of "difficult implementation", we should consider it from the legislative concept. The lag in implementing legislation has attracted the attention of theoretical circles, judicial departments and national legislatures. The reform and perfection of enforcement law should take solving the "enforcement difficulty" in practice as the starting point.

China should formulate a unified enforcement law, stipulate the separation of trial and execution, and make specific and clear provisions on the legal status of enforcement agencies and personnel, the establishment of enforcement agency system, implementation principles, implementation scope, implementation management, implementation procedures, implementation measures, implementation cost burden, assistance in implementation obligations and legal consequences that hinder implementation, so as to ensure the smooth development of the work.

(3) Improve the working mechanism of the court.

1, improve the overall quality of law enforcement team

Focus on the following two aspects: First, constantly strengthen the ideological, political, organizational and disciplinary implementation of police officers, improve their legal knowledge and professional skills, and make them all-round talents who can carry out their work; The second is to take the road of elite execution and gradually improve the level of executive team building. Establish a new implementation concept and deepen the implementation reform. Abandon the old practices that do not meet the requirements of modern rule of law and restrict implementation, deepen the implementation reform, and create a new system and new model that conforms to the implementation law, including the implementation system, the implementation agency, the operating mechanism of the implementation agency and the implementation methods.

2. Strengthen the reform of implementation methods.

Intensify the implementation work, and carry out the reform of the implementation mode according to the requirements of "full openness, strengthened supervision and strict standardization", so as to gain the understanding and support of all sectors of society for the implementation work and provide new impetus for promoting the development of the implementation work and solving the problem of "difficult implementation". Improve the implementation legislation, speed up the introduction of the implementation law, and provide legal basis and guarantee for the implementation work. The current law enforcement legislation has lagged behind the needs of law enforcement and lacks the spirit of efficiency. The enforcement law should be promulgated as soon as possible to provide legal protection for the implementation.

3. Specify a clear implementation time limit.

According to the current execution system, there is no time limit for executing a case, but in practice, one person handles a case, ranging from a few months to several years. The length of execution often depends on the intervention of external factors [2]]. Maybe the leader can ask questions or the parties can finish them in time, and there is no uniform standard when to close the case. In order to put an end to this phenomenon, the implementation procedure must specify a clear time limit for the implementation process.

4. Form an effective restriction and supervision mechanism.

"Difficult execution" also exposes the corruption of executive power in the process of operation. Therefore, it is necessary to establish the internal restriction and external supervision mechanism of execution.

At present, China's supervision system is not perfect, and the provisions on supervision strength, standards and procedures are not specific and clear. For example, execution supervision means that the people's court at a higher level supervises the execution work of the people's courts at lower levels and the people's courts at all levels and special people's courts in the Supreme People's Court according to law, and should promptly correct any mistakes found. However, there are no relevant regulations on the types, nature and how to correct the mistakes in legislation [[3]].

As a national legal supervision organ, the people's procuratorate has no right to supervise the execution of the people's courts, which is undoubtedly one of the root causes of corruption among some people in charge of execution and leaders of the people's courts, thus affecting judicial justice. Therefore, it is necessary to strengthen the restriction and supervision of the state legal supervision organs on the administrative power. Enforcement is closer to administrative behavior, and the enforcement procedure is less interfered by another kind of public power because of its mandatory characteristics, so it is necessary to protect citizens' rights with the enforcement relief system. It is not only a right of the infringed person, but also a kind of supervision to the administrative organ.

Strict internal control mechanism is also important. To strengthen the construction of law enforcement team, scientific management of law enforcement team, strict law enforcement discipline, business training, improve the level of law enforcement. Courts at all levels actively explore the separate exercise of executive power, which has changed the disadvantages of centralized executive power in the past, easy to act arbitrarily and operate in a black box, and effectively rectified the disorder of execution.

5, give full play to the function of the trial procedure, to provide favorable preconditions for the implementation of the work.

Trial procedure is the premise and foundation of execution procedure, and execution procedure is the continuation and perfection of trial procedure. It can be seen that the trial procedure is closely related to the execution procedure. Making full use of the function of the trial procedure, correctly guiding creditors to claim their rights and taking timely preservation measures will lay a good foundation for future implementation, avoid duplication of work, effectively curb all kinds of debt evasion, and be conducive to the smooth development of the work. However, the reality is: at the trial stage, what should be done has not been done; The saved is not saved; What should have been executed first was not executed first. However, on the grounds that "I" only judge and execute the case is the task of another department in the next stage, the case was put aside, which weakened the judicial authority over time and missed the opportunity to solve the case satisfactorily.

(four) to cultivate the awareness of the parties in the implementation of evidence.

The reform of trial methods has achieved fruitful results. In terms of the way of proof and the distribution of responsibilities, it has been well played through the guidance of judges, who can provide evidence to prove their claims. In the execution procedure, the parties are required to give evidence, but some parties don't understand. They believe that the relationship between civil rights and obligations has been confirmed through litigation procedures, and the people's court should force the obligor to perform his obligations according to the legal documents that have entered into force, and no longer bear the burden of proof. It is believed that the investigation and evidence collection in execution should be undertaken by the people's court. In this case, the people's court should increase publicity through various channels to guide the parties out of the misunderstanding of not bearing the burden of proof, and make it clear that giving evidence in execution is an important obligation and a powerful guarantee for realizing rights.

Informant reporting system is a system in which the court develops informers in places where people often move and insiders for those who find it difficult to find and hide their property, and requires informers to report the information of the executed person and his property. If the report is true, a certain amount of monetary reward will be given according to the situation of the informant.

The implementation of publicity can guarantee the parties' right to know; Make the running process of execution transparent. These aspects should be clearly defined in the implementation procedures. Increase the transparency of the enforcement of cases, especially through the disclosure of sensitive links, so as to reduce the situation that the parties do not accept the enforcement results because they do not trust the court, and then complain about the "empty judgment" and "legal blank" of the court, so that the parties can know the progress of the enforcement of cases, the difficulties encountered and the legal basis for the judges to exercise their functions and powers in a timely manner, strive for the understanding and support of the parties and even the whole society, and establish a good image of fair justice in the people's courts.

The so-called property declaration system of the person subjected to execution means that if the person subjected to execution fails to fulfill the obligations specified in the effective legal documents within the time limit specified in the notice of execution of the people's court, he shall declare all his property status to the people's court, including movable property, immovable property, various creditor's rights and other property rights and their mortgages.

(5) Improve the civil dispute resolution mechanism and expand the ways of civil dispute resolution.

Give full play to the advantages of private relief, improve the litigation guarantee system, reduce the litigation cost of the parties and protect the basic legitimate rights and interests of the parties. We know that in civil cases, the parties use litigation to solve disputes based on their full trust in the court. The purpose of litigation is to ask the court to order the other party to perform certain obligations, but in reality, the court does not protect the legitimate rights and interests of the parties well. If the court does not implement it in place, the judgment will become a blank sheet of paper and cannot be effectively implemented. The winning party not only spent a lot of money on litigation, but also paid a lot of energy for it, and finally fell into a situation where the judgment could not be executed and human and material resources were lost. In fact, in reality, parties participate in litigation not only to obtain procedural rights, but also to obtain substantive rights. On the other hand, we should improve the collection system of litigation fees in China and establish a litigation fee guarantee system. At present, the legal fees in our country are generally collected before the trial of the case, and the execution fees are collected before the court executes the execution procedure. And it is quite unreasonable to charge fees according to the subject matter of litigation. I think the state should reduce the collection of litigation fees and enforcement fees or should collect them after the rights and interests of the parties are really protected [4].

Verb (abbreviation of verb) conclusion

Solving the problem of difficult execution is a systematic project and a long-term and arduous task. The key lies in the perfection and perfection of the compulsory execution program. As long as the concept of "retrial is more important than execution" is fundamentally changed, the value of execution procedure is correctly understood, the enforcement legislation is strengthened, and the enforcement mechanism is improved, I believe that the problem of "difficulty in execution" will be solved and the implementation work will definitely get out of the predicament [5]. In short, in order to overcome the difficulties in execution, we must properly handle the relationship between trial and execution, give full play to the function of trial procedure, clarify the burden of proof of the applicant executor and the person being executed, establish and improve the powerful execution measures represented by the "executive informant system", thus reducing the execution cost, improving the execution efficiency, establishing judicial authority, and earnestly safeguarding the legitimate rights and interests of the parties from being infringed [6].

[1] Jiang Wei: Civil Procedure Law (2nd Edition), Higher Education Press, 2004, p. 28.

[2] Jiang Wei: Principles of Civil Procedure Law, Renmin University of China Press, 1999, p. 65.

[3] Qi, Ma Changming: "Exploration on Several Issues of Improving China's Executive Law", Higher Education Press, 200 1 Edition, the first 23 1 Page.

[4] Wu, Tian Pingan: Civil Procedure Law, China University of Political Science and Law Press, 1999, p. 1 136.

[[5]] Fang Qifang. Review of Civil Litigation Fees, China Social Sciences 1999, No.3.

[[6]] Yang Rongxin. Principles of Civil Procedure, Law Press, 2003, p. 536.