The Theory Of Civil Execution Delay In Performance Of Interest

The system of interest on delayed performance provided in our country’s Civil Procedural Law is one of the indirect civil enforcement measures. The Civil Procedural Law stipulated in Rule253that if the enforce fails to fulfill his obligations of paying money within the time designated by judgments, rulings and other legal documents, he should pay twice as much as interest on the debt during the delay in performance. It tries to ease the intensified "execution difficulties" in judicial practice through the development of the system of interest on delayed performance.To implement this system strictly, on one side, will give the enforce great psychological stress through the economic punishment and will prompt him to fulfill his obligations of paying money. At the same time, it can improve the deterrent of court enforcement and serve to reduce the number of cases which need to enforced, reduce the execution difficulty and improve the execution efficiency; on the other side, the nature of economic compensation of this system will effectively prevent the prevailing party suffer further losses due to the other party’s delay in performance and make it difficult for the losing party to get any profit from it. It is also the practical needs of demonstrating the fairness of adjudication. However, the current principled and fuzzy legal system makes the calculation of the interest on delayed performance lack of uniform standards, resulting in vastly different interest calculation and judicial practice confusion and many new conflicts and disputes.Under this circumstances, through collecting and analyzing related research results and relevant judicial cases, taking related theories in civil procedural law as support, the author will deeply analyze many aspects of the interest on delayed performance, such as its meaning, nature, demanding subject, radix, duration and interest rate, etc. I believe that the delay in fulfilling the interest Subjectively speaking more emphasis on the nature of compensation to creditors, and objectively reflect the executed punitive, thereby delay the performance of the application should be executed interest of creditors as a precondition. In addition, the delay in performance of the base interest shall include interest (interest and overdue interest period), breach of contract, part of the realization of the rights fee; delayed performance computing interest on the expiry of the period specified in the referee instrument performance period starting and ending on the day the debtor’s actual performed ended, after deducting the special period which elapsed; delay in performance of interest rates should not only be with the People’s Bank of China benchmark lending rate for the same period, and the interest rate should be the same grade, and this is the statutory interest rate can not be agreed upon. Through this series of issues in-depth Analysis, forming both parties to comply with legal requirements and to facilitate the understanding of the implementation of the delay in performance unified computing standard interest to balance the protection of the legitimate interests of both parties, fairness and justice of the law.