Study On The Requirements For Civil Enforcement

The requirements for civil enforcement are the necessary conditions to allow enforcement agencies to carry out compulsory execution.Since compulsory execution is the process by which the state’s public power intervenes in the realization of the right to claim in private law,its implementation is always faced with the boundary dispute between the exercise of power and the protection of interests.Therefore,in order to delimit the above boundary to avoid disputes and thus maintain the stability and legitimacy of the enforcement,it is necessary to establish the requirements for civil enforcement in the field of compulsory execution.Whenever the enforcement of compulsory execution is involved,the first step is to check whether the requirements for civil enforcement are available.So as one of the core systems in the field of compulsory execution,the requirements for civil enforcement have profound theoretical value and universal practical significance.This article takes the requirements for civil enforcement as the title,re-constructs the system of civil enforcement’s requirements in China by restoring the original features and proper framework of the requirements for civil enforcement,and uses this system to drive the adjustment and improvement of relevant enforcement theories,thus providing scientific,normative,smooth and self-consistent theoretical guidance for the practice of compulsory execution in China.In addition to the introduction,this article is divided into five chapters.Chapter Ⅰ: Legal Analysis of the requirements for civil enforcement.The so-called requirements for civil enforcement refer to the necessary legal conditions for enforcement agencies to impose state compulsory force on the debtor in order to realize the right of claim in private law.The elements for civil enforcement regard the narrow sense of civil compulsory execution as the visual threshold,which run through the whole process of compulsory execution and play a function of commending the legality of compulsory execution.The requirements for civil enforcement are characterized by necessity,legality,legitimacy,public welfare and private benefits,and the necessity is the basis of the civil enforcement’s elements.The emergence of civil enforcement’s elements is the result of the combined effects of many factors,such as the separation of judicial agencies from enforcement agencies,the urgent need for the legality of compulsory execution,and the radiation effect of the elements for civil litigation.In the legislation and practice at home and abroad,the elements for civil enforcement may be coherent,continuous,or innovative,sublimated,each with its own distinct development track.The requirements for civil enforcement,the requirements for civil litigation,the requirements for enforcement writ,the starting requirements for compulsory execution and the conditions of application for enforcement have certain similarities or content intersections.However,the requirements for civil enforcement are more comprehensive in the field of compulsory execution,more complete in system and more advanced in rank.According to different standards,the requirements for civil enforcement can be divided into general and special requirements,substantive and procedural requirements,active and passive requirements.Chapter Ⅱ: Chinese practice of the requirements for civil enforcement.In China,although the elements for civil enforcement are expressed in an anonymous sense,they actually exist objectively.From the legislative point of view,the elements for civil enforcement from the beginning are dependent on the conditions of application for enforcement and play the role of excluding illegal enforcement.At the same time,the judicial interpretations issued by the Supreme People’s Court,such as the enforcement of arbitral awards,the enforcement of notarial creditor’s documents,the change of additional enforcement parties,the filing and closing of enforcement cases,also integrate the contents and principles of the elements for civil enforcement,such as the ability of enforcement,the eligibility of enforcement parties,and the abnormal end of compulsory execution.In practice,the local courts have not only strictly complied with the conditions of application for enforcement when formulating judicial documents and ruling documents,but also introduced the innovation of civil enforcement’s elements into the review of the executive body after the execution.However,in general,the civil enforcement’s elements are still in a state of dislocation in China.The confusion with the conditions of application for enforcement not only leads to the substantive nature of the review of the execution of the case,but also limits the review of the legality of compulsory execution.Objectively,it also causes the “filing difficulty” of execution cases.In addition,the immaturity of the elements for civil enforcement in the content,framework and scope of application,as well as the fuzziness of the function of excluding illegal enforcement,also seriously restrict its development and application.In recent years,with the steady advancement of the reform of the separation of trial and execution,the full implementation of the “registration system for filing cases” and the strong tackling of the “basic solution to the difficulty of execution”,the reconstruction of the elements for civil enforcement has a positive and necessary context.Chapter Ⅲ: The content of the requirements for civil enforcement.The requirements for enforcement basis are the basic requirement in the requirements for civil enforcement.It can be divided into the establishment of enforcement basis,the realization of the special requirements,the delivery of enforcement basis and the necessity of compulsory execution.Among them,special requirements refer to the achievement of the conditions,the expiration of the term,the provision of the guarantee,the execution of the payment and the failure to perform the original payment,which attach to the enforcement basis.The requirements of enforcement parties include the determination of enforcement parties,the ability of executing rights,the ability of executing actions,the authority of enforcement agents and the eligibility of enforcement parties.The creditor and the debtor shall meet the requirements above.Under the requirements for enforcement agencies,it is equally important to define the executive director of the overall functions and powers of enforcement agencies and to determine the rules of executive jurisdiction for the specific enforcement agencies.The executive director shall take the compulsory execution with civil and commercial nature as the criterion,and shall list the various enforcement basis in detail.Executive jurisdiction requires enforcement agencies to have international jurisdiction,professional jurisdiction,regional jurisdiction and level jurisdiction over specific enforcement cases.The requirements for obstacles to execution are negative requirements for civil enforcement,and their absence is a prerequisite for compulsory execution.The requirements for obstacles to execution include the debtor’s bankruptcy,reconciliation in bankruptcy,corporate restructuring,special liquidation,non-execution of contracts and so on.When reorganizing the content of civil enforcement’s requirements,we should adhere to the principles of comprehensive coverage,internal and external convergence,rooting the soil,and keeping up with the times,and make specific determinations from the aspects of the requirements for enforcement basis,the requirements for enforcement parties,the requirements for enforcement agencies and the requirements for obstacles to execution.Chapter Ⅳ: Review procedure of the requirements for civil enforcement.The review of the requirements for civil enforcement is divided into the review before the start of enforcement and the ongoing review of enforcement.In the previous review,the review agencies can be divided into a single-track system for the sole review of enforcement agencies and a two-track system for the sub-inspection of enforcement writ’ agencies and enforcement agencies.The review agencies shall examine the requirements for civil enforcement according to its functions and powers before the commencement of compulsory execution,and shall have the right to examine the relevant documents,access the original files and summon the enforcement parties.As for the order of review,it is generally appropriate to adhere to the principle of priority review of general,procedural and active requirements.The results of the review vary depending on the review agencies.The latter review is applicable to two types of situations where the civil enforcement’s requirements are changed or not found during the compulsory execution.Compared with the previous review,the latter review is only for specific requirements that are subject to change or flaw indeed.The time of review shall be when the review agencies is aware of the above changes or flaws.The review agencies shall consider whether the flaws of civil enforcement’s requirements are no longer available due to the changes or lack of civil enforcement’s requirements is cured or not accountable.Then The review agencies make the corresponding results.Since our country does not implement a complete separation of trial and execution,and the enforcement writ is difficult to cover all specific requirements,the enforcement writ system does not apply in our country.Chapter Ⅴ: Relief methods for the dispute of the requirements for civil enforcement.Affected by the authority and formalization of the review,the enforcement parties and the interested parties are likely to have disputes about whether the requirements for civil enforcement are available,so it is necessary to give them some relief methods.The relief method for the dispute of civil enforcement’s requirements has the characteristics of more extensive relief period,more emphasis on the content of review,more balance of relief subjects,more pluralistic review agencies and so on.According to whether the requirements involved in the dispute are the substantive requirements,whether the relief method is related to the enforcement writ,and the specific period during which the relief method occurs,the relief methods for the dispute of civil enforcement’s requirements can be classified into different categories.In order to correspond with the review procedure of civil enforcement’s requirements in Chapter IV according to different stages of compulsory execution,this chapter also chooses to divide the relief methods for the dispute of civil enforcement’s requirements into the relief methods before the beginning of compulsory execution and the relief methods in the process of compulsory execution.The former includes objection to enforcement writ,objection before compulsory execution,action to deliver enforcement writ,and action to license execution,while the latter includes objection to execution,objection to deliver enforcement writ,objection of the debtor,and objection to unqualified enforcement parties.After the end of compulsory execution,the damage caused by compulsory execution of the lack of civil enforcement’s requirements shall be compensated,and the debtor may be allowed to file a lawsuit for unjust enrichment,damages,and state compensation.In China,the existing relief methods are scattered and scarce,and have little correlation with the civil enforcement’s requirements,which is difficult to meet the needs of resolving disputes over the requirements for civil enforcement.In view of this,we should emulate extraterritorial legislation,and add the substantive relief methods such as action to license execution,objection of the debtor,and objection to unqualified enforcement parties.At the same time,we should also ensure that lawsuits for unjust enrichment and damages are connected with the provisions of substantive law.