Study On The Execution Remedy System Of Notarial Debt Instruments

The notarial debt instruments has a mandatory enforcement effect,if the party fails to perform,the other party may apply directly to the people’s court for enforcement.The emergence of this system not only satisfies the needs of the people for the resolution of diversified disputes,but also plays an important role in saving judicial resources and reducing litigation costs.In recent years,due to the development of the socialist market economy and the increase of creditor disputes,both the theoretical and practical circles have paid extensive attention to the problems arising in the enforcement of the notarial debt instruments.There are also corresponding particularities in the execution remedies of the notarial debt instruments.In particular,the Provisions of the Supreme People’s Court on the Implementation of Certain Issues Concerning Notarial Debt Instruments(hereinafter referred to as the “Regulations on the Implementation of Notarial Debt Instruments”),which was enacted in October 2018,made preliminary provisions on some of the problems that occurred in practice.In order to give full play to the role of notarization in preventing disputes and resolving disputes,safeguarding the rights of the parties,realizing the value of justice and efficiency,and further improving the execution remedy system for notarial debt instruments,research related to it is necessary.In this regard,this paper uses historical analysis,comparative analysis,text analysis,empirical analysis and other research methods,starting from the basic theory of the execution remedy in notarial debt instruments,comparing the current legislative provisions and practice summary in China,and analyzing the relevant legislative cases in the civil law system.In comparison,it discusses the further improvement of the execution remedy system for the notarial debt instruments in China.In addition to the introduction and conclusion,this article is divided into four chapters with more than 30,000 words.The main contents are summarized as follows:The first chapter is the basic theory of execution remedy system for the notarial debt instruments.This paper analyzes the source of the enforcement effect of the notarial debt instruments.It is generally believed that its theoretical basis lies in the party’s sense of autonomy,the disposition of the right to appeal and the value measurement of justice and efficiency.Some scholars have proposed to understand the part from the perspective of jurisdiction;The concept of the execution remedy,the logical starting point,the regulation of illegal enforcement and improper execution to protect the rights of the parties and the third party;on this basis,further analyze the particularities of the relief of the enforcement of the notarial debt instruments.The second chapter expounds the history and current situation of the legislation and the problems in the execution remedy system for notarial debt instruments.Prior to the promulgation of the "Regulations on the Implementation of Notarial Debt Instruments",the provisions on the execution remedy system in notarial debt instruments in the legal and judicial interpretations made no difference between the entity and procedures,both were included in the system of non-execution.The generality leads to difficulties in practical operation.The non-execution is not a cloak of procedural relief but to resolve the substantive disputes actually.The judicial interpretation is introduced,and the reasons for the previous non-execution are distinguished.Incorporate into the lawsuit against the execution by debtor to resolve it,and respond to other disputes in practice,but there are still some imperfections,such as the specific implementation of the lawsuit against the execution by debtor,the creditor’s rights relief,how to ensure the implementation of the role of the certificate can be achieved.The third chapter is a comparative study of the execution remedy system.Germany,Japan,South Korea and other countries and Taiwan’s regulations on the implementation of relief and related systems,from the implementation of the text and its relief,to procedural relief,substantive relief,party remedies,etc.,have formed a systematic and rigorous.The legislation stipulates that it pays attention to the full protection of rights of both parties and has strong practical operability.The fourth chapter is about the idea of improving the execution remedy system in China’s notarial debt instruments.Through the study of legislative evolution and extraterritorial legislation,this paper believes that the execution remedy system for notarial debt instruments can be improved from the following three aspects: First,the cause of the lawsuit against the execution by debtor should be supplemented and refined,and the trial procedure should be stipulated;The rights of creditors should be ensured when the procedure is transferred from execution to proceedings,establish a special system of property preservation prior to litigation,in addition,the notarial debt instruments should not be arbitrarily ruled out,and the relief should be made after the distinction;The system provides remedies for whether or not to issue a certificate of execution,and sets up appeals and lawsuit against the execution.