Discussion On The Countering Upon Transferrable Enforcement Avoidance Behavior

The behavior of avoid enforcement done by the debtor is one of the vital elements resulting in the problem of "hard to enforce". In transferrable enforcement avoidance behavior, the debtor adopts an apparent "legal" behavior upon "civil law behavior" with the third party so as to avoid enforcement, which is more of disguised and deceptive as a frequent "disaster area" where the debtor would successfully avoid enforcement. Under the social background that efforts are intensively paid to solve this "hard to enforce" problem in China, academic and judicial fields exert more and more attention to the study of countering enforcement avoidance. The writer finds that most studies on countering enforcement avoidance behavior relies on the whole enforcement avoidance behavior as study object, of which solutions to problems mainly depend on the perspectives of diversified strikes on enforcement avoidance of the executed person and severe intensity of punishment, with fewer specific studies on a certain type of enforcement avoidance from legal counter perspectives. Therefore, the writer chooses transferrable enforcement avoidance behavior as his study object for legal countering, as it is the most highlighted and hard-to-solve problem in juridical practice, so as to provide new thinking and effective solutions for relevant problems from the perspective of legal system. From the argument, the writer explicates the concept, features and type division of enforcement avoidance behavior, which result in confirming transferrable enforcement avoidance behavior as the study object and confirming the countering of transferrable enforcement avoidance behavior as the study topic. Later, the writer adopts classified method to study countering transferrable enforcement avoidance behavior, based on the division of various natures of legal system defined by law's power upon the public and the private subjects, dividing it into two aspects, including the countering system upon the debtor's right given by our nation and the countering system during examination and control executed by Chinese courts. To point out the problem more directly and specifically, the writer lists two typical cases in transferrable enforcement avoidance behavior, so as to trigger readers' thinking upon relevant problems. In specific studies of countering system, the writer firstly lists the current countering system of Chinese law upon transferrable enforcement avoidance behavior and analyzes its current problems. Additionally, the writer further analyzes the causes beyond problems of countering system. In the argument of the countering system upon the debtor's power given by our country, the writer not only analyzes specific shortages of current countering system, but also discuss the transferrable enforcement avoidance behavior done by the debtor after the validation of Judgments in China combined with the specific situations in Case I and Case II. It is found that the functional deficiency of countering system adjustment lies in the deletion of subjective scope expansion of executive power in China and innovative system suitable to the current situation. At last, in exportation of improving the countering system of transferrable enforcement avoidance behavior, the writer firstly presents a responding answer of the improvement of countering system upon the creditor's right given by our country. Especially to the problem of system deficiency in Case I, the writer suggests that a subjective scope expansion system of executive power should be built in China. For Case II where there lacks relevant systems related with this field for reference, the writer suggested that, based on the actual situation in China, the avoiding system of connected transaction of liability assets of the executed shall be built. Additionally, for the improvement of countering system during Chinese courts' execution of examination and control process, the writer finds that, for a deeper and further improvement of the countering system of Chinese courts' execution of examination and control process, it is needed to put it into an institutional framework with better protection to the third party's interest so as to discuss and solve relevant problems on that basis. The writer gradually mentions that an examination and control system upon suspected liability assets should be built in China, so as to improve the countering system during the examination and control process executed by Chinese courts. Therefore, the writer discusses relevant theories of the examination and control system of suspected liability assets. Finally, within the framework of the examination and control system of suspected liability assets, the writer gives his suggestions based on the shortage of the countering system of the examination and control system executed by Chinese courts.On March 28 th, 2016, the Supreme People's Court passed Work Brief on the Practice of "Basically Solving the Hard-to-Solve Problem Within Two to Three Years", which suggests a definite schedule for basically solving the chronic illness of hard-to-solve problems in China. This Brief will fundamentally contain the phenomena of "enforcement avoidance of the executed" as one of the four "main targets" of solving the hard-to-solve problems. This Brief also suggests that "scientifically planning the top design of solving hard-to-solve problems, with brave exploration, bold innovation and continues accumulation of practically experience of hard-to-solve problems in executive concept, executive method and executive management ".The writer hopes to take the revolution of solving hard-to-solve problems China as an opportunity to express his suggestions and opinions through the above theoretical study, so as to contribute to the successful completion of the expected schedule of basically solving "hard-to-solve" problems. Due to limited capacity, this paper might have some biased ideas and readers feedback and comments are welcomed.