Research On The System Of Safeguarding The Rights Of The Executed Person Who Has Lost Faith

The spirit of modern rule of law requires the law to protect citizens’ basic rights,but it is not uncommon to infringe on the basic legal rights of those who break promises in practice.However,due to the imperfection of relevant legislation,the nonstandard behavior of executives,the indifference of the public and other factors,this phenomenon has not attracted enough attention.How to effectively protect the enforced human rights of dishonesty is an urgent problem to be solved.Therefore,this paper takes the system of guaranteeing the rights of the person subject to breach of trust as the research object,and the whole paper is divided into five parts except the introduction and conclusion.The first part,the connotation of the person subject to breach of trust and the analysis of the phenomenon that his rights are infringed,is the research premise for guaranteeing the rights of the person subject to breach of trust.At present,the connotation of "untrustworthy executors" in China’s legal academic circles is mainly measured by "Several Provisions of the Supreme People’s Court on Publishing the List Information of Untrustworthy Executors"(hereinafter referred to as "Several Provisions")in February 2017,which has not reached a theoretical consensus.Therefore,the untrustworthy executors studied in this paper refer to those confirmed by the court,which may be the real untrustworthy executors who conform to Article 1 of Several Provisions,or the subjects who are wrongly identified as untrustworthy executors by the court but are not actually untrustworthy executors in the legal sense.To some extent,punishing and deterring the untrustworthy executors is of positive significance to solve the problem of "difficult execution".However,on the one hand,legislation takes the realization of creditors’ claims as the "absolute" core,showing obvious characteristics of unipolar legislation,with little regard for the protection of the rights of untrustworthy executors;on the other hand,the violation of the rights of the person who has broken his promise is more serious,and inappropriate information disclosure mechanism and rigid execution behavior lead to excessive infringement of their basic rights such as reputation right and privacy right.By screening 75 related cases,it can be found that the types,subjects and ways of rights infringement are diversified.Financial institutions such as courts,banks,and application executors have caused damage to the reputation right,labor right,contract performance right and other rights of the untrustworthy executors due to facts determination,failure to strictly follow the execution procedures,and mistakes or malice.The second part,the reasons of guaranteeing the rights of the person who has broken the promise.First of all,it is based on the needs of public interests and legal order to include the untrustworthy executors in the list of untrustworthy executors and conduct credit punishment,but the various restrictions on them should be within the legal and reasonable scope.Of course,the legal rights of the untrustworthy executors are not fully protected without discrimination,so it is necessary to clarify the boundaries of rights protection first.Secondly,the theoretical research on the protection of the rights of such subjects in China is still weak,but it is closely related to the basic theories such as rights-based theory,the limits of rights conflict and derogation,the legitimate principle of procedural justice,the protection of human rights,and the inherent origin of civil enforcement.On the one hand,it protects the legal rights of the untrustworthy executors from excessive infringement,and on the other hand,it restricts the abuse of enforcement power to strengthen the implementation in good faith and civilization.Finally,as far as the legitimacy of protection is concerned,it is based on the needs of protecting citizens’ rights,standardizing implementation level,stabilizing social order and creating a better economic environment.The third part,the current situation and problems of guaranteeing the rights of the untrustworthy executors,is the research subject of guaranteeing the rights of the untrustworthy executors.At present,China’s legislation provides a certain protection for the rights and interests of the untrustworthy executors,and there is a trend of gradual exploration,but the effectiveness of protection is relatively limited on the whole;Because the practice of the person subject to breach of trust in our country is in the initial stage,there are some problems in the safeguard measures in judicial practice due to lack of experience.First,there are loopholes in the relevant legislative guarantees,and the legal provisions are relatively simple,the basis is insufficient and the rank is low;Second,the premise of the identification of the untrustworthy executor is not standardized,and the way of publication exceeds the limit;Third,the behavior of executives lacks effective regulation,and the supervision and accountability mechanism is not in place;Fourth,the relief mechanism is imperfect,the concept of protecting the rights of the person subject to breach of trust is lacking,the exit mechanism is imperfect,and the system of rights protection and supporting measures is lacking.The reasons are: the traditional judicial concept emphasizes entity over procedure,the unequal status of parties in civil enforcement,the uneven level of executors,the imperfect social credit mechanism,etc.,which all have some influences on the imbalance of the rights of the executors who have lost their promises.The fourth part,the extraterritorial experience of guaranteeing the rights of the person who has broken the promise.After long-term exploration,some countries outside the country can better limit the sanctions on rights to the controllable range.Germany’s oath-taking system and debtor directory system are included in the hierarchy of objects,the specialization of executive institutions,and the rigorous disclosure of content and inquiry methods;South Korea’s debt nonperformer’s name book system determines the applicable conditions,and the examination and adjudication procedures for publishing applications are strict;American social credit system protects personal information from disclosure.The enlightenment of the above experience to China can be shown as establishing special legal system at the regulation level,refining the classified management of debtors at the cognizance level,standardizing the procedure setting at the execution level,and providing multi-faceted guarantee at the relief level.The fifth part,the conception of the system of guaranteeing the rights of the untrustworthy executors.Our country can solve the existing problems on the basis of referring to the beneficial measures outside the country and combining the national conditions.First,formulate unified legal norms,comprehensively consider the nature of the case,the legitimacy of the execution procedure and other factors to adjust the application grace period,and strictly limit the application of joint and several liability;Secondly,measure whether it should be included in the list of untrustworthy executors and the intensity of punishment from four levels,that is,judge the subjective vicious attitude of the executor,respect the opinions of the application executor,consider the subject identity and differentiation of the executor,and implement limited publicity of the subject,place and content of the list of untrustworthy executors;Third,in the behavioral norms of executives,it is necessary to strengthen the concept of good faith and civilized implementation,enhance professional quality,improve behavior patterns,and at the same time strengthen implementation supervision and determine liability for damages;Fourthly,we should improve the supporting measures of right relief,adhere to the principle of moderation,broaden the relief channels,improve the procedural measures,and promote the construction of social credit system and credit repair mechanism,so as to benefit the construction and improvement of the rights protection system of the untrustworthy executors.