0n Application Of Principle Of Proportionality In China’s Civil Enforcement

Discuss the application of principle of proportionality in china’s civil enforcement is in order to make up for the defect of the existing basic principles of the civil enforcement, enrich the existing theory of civil enforcement, improve the deficiency in the existing civil enforcement procedure, solve the "execution chaos" and "difficult to execute" dilemma civil enforcement faced, fundamental purpose is not only better fully protect the legitimate interests of the debtor in the civil enforcement,but also weigh on the execution of the interests of all parties, in order to personal interests and social interests to achieve a harmonious unity.In this paper, the total of about twenty-six thousand words, in addition to the introduction, is divided into four parts:The first part:an introduction to the application of principle of proportionality in civil enforcement.The principle of proportion is refers to the administrative organs to implement administrative behavior should be to balance the interests of protecting the lawful rights and interests of the other party and administrative implementation, if implement the administrative purpose have the possible adverse effects on the relative person’s legitimate rights and interests, we should make the adverse effect limited within the scope of as small as possible, and keep the moderate scale.There is not much academic controversy for its nature, most people think the principle of proportion is a general principle in the field of public law.Now that civil enforcement as a branch of public law field, then there is the principle of proportion in civil enforcement for discussion,Its connotation is mainly refers to in the process of civil enforcement, the exercise of executive power should protect the interests of the realization of creditors and debtors, such as the realization of the interests of the creditors to the debtor caused adverse effect, we should make the not interest limit within the scope of as small as possible, and keep the moderate scale.Its specific connotation embodied in the three child principle of proportionality, the principle of appropriateness, necessity principle and special principle of proportion.The second part:the value of the application of principle of proportionality in china’s civil enforcement.The principle of proportion applicable in civil enforcement in our country has important theoretical and practical value.On the one hand, the discussion of proportion principle applicable in civil enforcement in our country, to broaden the scope of civil enforcement theoretical research in our country, and it can perfect the insufficiency of the relevant theoretical of civil enforcement in our county;On the other hand,the principle of proportion not only can be solved "execution chaos" and "difficult to execute" dilemma in practice due to the civil enforcement rules are vague that perform the judge in the exercise of discretion on the lack of specific guide path caused, and according to certain civil enforcement measures in the implementation of infringing on lawful rights and interests of the parties to the problem,using the proportionality review its rationality, and put forward the perfect suggestions, so as to reveal the principle of proportion in the practical value of civil enforcement in our country.The third part:the trouble of the application of principle of proportionality in china’s civil enforcement.First, the principle of proportion in our country is just a basic principles of administrative law on with the consciousness of human rights protection of civil enforcement is relatively weak, the two factors together makes the principle of proportion and the civil enforcement in our country is lack of direct contact in theory, cause the principle of proportion in civil enforcement in our country is vulnerable to ignore.Secondly, the principle of proportion in unclear legal status of civil enforcement in our country, the principle of proportion is mainly related to the our country civil enforcement basic principles on the content and function is similar to the rejection, and the application of the principle of proportion is no clear legal basis.Not only that, the principle of proportion of abstractness, make the use of standard is difficult to grasp, it also brought the reality applies quite difficult.The fourth part:the trouble of eliminating of the principle of proportion applicable in china’s civil enforcement.This part mainly from civil enforcement in our country and the related theory of proportionality set out, solve the trouble of the principle of proportion applicable in civil enforcement in our country.First of all, from the executive power of civil compulsory enforcement properties and strengthening the consciousness of human rights protection of civil compulsory enforcement, establish the theoretical relationship between the principle of proportion applicable and civil enforcement in our country, for the principle of proportion in civil enforcement in our country for find a place to start.Second, the specific principle of proportion in the legal status of civil enforcement in our country, mainly because of the existing related basic principles of the civil enforcement various mad,and content is too abstract, the principle of proportion is better than simple,and strong. Maneuverability,so deal with integration, establish he principle of proportion as the basic principle of civil enforcement in our country.Finally, the Suggestions by studying the case of administrative discretion benchmark system and play a role in guiding to solve in practice the use of proportionality standard is difficult to grasp the problem, thus reducing because of its negative effects as a result of the "defect".