Discussion on New Countermeasures to Solve the Civil Execution Problems

【Abstract】in our country， how to solve the civil execution problems is not only important to the courts， but also a big step in the effort to safeguard the interests of the people. This paper analyses the present situation of our countrys civil execution difficulties and the inner reasons. From a new angle of view， the author dared to build a new solution to civil execution mode， which means to set up the civil execution guarantee agency， who have both functions of the execution department and the insurance company. This civil execution guarantee agency will insure that the implement of court's decisions would come to work instead of being a piece white paper.

【Key words】civil execution； insurance mode； double functions； guarantee agency

I. CURRENT STATUS OF DIFFICULTIES OF CIVILIAN EXECUTION

With the Eighteenth Congress of the Chinese Communist Party was held， the process of building a socialist legal system is gaining pace， people are keener on issues such as the protection of their own interests. But now， China's legal system in the process of civil execution issue has been difficult to obtain a fundamental breakthrough. “2012 Work Report of the Supreme Court，” pointed out： “enforcement cases handled 2，557，000， of which， 2，394，000 were finally put into enforcement.” It is visible that there is still a lot of cases out of rulings. In order to strengthen the judicial authority and the realization of the legitimate interests of the parties， the court has taken to strengthen the implementation of standardized construction and the supervision of the execution rights. Despite there is some success of these initiatives， but they did not maximize the protection of fundamental interests of the parties. When met the circumstances that the debtor is unable or avoid fulfilling his obligations intentionally， the court and the creditors are facing enormous challenges.

II. INNER CAUSES OF THE DIFFICULTIES OF CIVIL EXECUTION

2.1 The Unsound Legal System

Since the reform and opening up， driven by the market economy， Chinese legal process has been in quickened pace. But now China's legal system is still not perfect， many laws and regulations have not perfected. Especially on the aspects of the specific laws of civil execution have not yet formed， the relevant provisions are too surface， which do little good to solve the problems of civil execution fundamentally. Currently， the provisions of execution are the “Civil Law”， “Opinions on the application < People's Republic of China Civil Procedure Law” Issues， “and a number of issues concerning the execution of the provisions of the People's Court （Trial ）” as well as some related judicial interpretations， notifications， approvals， methods and other relevant departments involved in law -related provisions. The imperfect laws and regulations have increased the difficulties of execution， since the judges and executives have no laws invoke directly when in the face of specific problems， which easily allows the debtor to get the legal loopholes， and also provides an opportunity for the corruption of execution officers.

2.2 Negative Attitude and Corruption of the Execution Team

Its not difficult to see， an important reason of why many of the current domestic cases were not put into enforcement is the negative attitude and corruption of the execution team. When a party applies for an execution case， many executives are afraid of difficulties， holding the mentality of “the less trouble， the better”， allowing the debtor to delay， evasion， concealment and transfer the property and take other illegal activities deliberately， their passive enforcement eventually leads to the suspension of the execution. What is worse， some executives were dominated by the thoughts of “no gifts not to execution” and “help the one who give gifts”， in the implementation process， wantonly accepting applications executor or the debtor's property， bribery is rampant， which seriously affected the image of the judicial cadres and justice.

2.3 People's lack of legal consciousness and the whole social credit system.

In the process of execution， many individuals are lack of legal consciousness， and they were reluctant to be executed. Many people prefer to spend a couple of weeks in the detention office rather to pay the fine； some criminals deliberately presented property to relatives or transferred to other places， unwilling to bear the corresponding legal responsibilities. Such efforts to take punitive measures are inadequate to deter such offenders. Meanwhile some of the debtors have relationship with some social groups， many of them have higher social status and social power， who always are have some relationship or outrageous way to refuse the execution. These not only make the execution more difficult， but also the parties who lose the interests get nothing. Such cases gives the losing parties a thought of “there is no use of getting a verdict， we can get nothing”. This kind of thought lead to the lack of confidence in the execution of the verdict， so they transfer to complain letters， etc.， in order to get the governments intervention in the judiciary.

Actually， this not only increased pressure for the government， but also reduced the credibility of the court， and get more interest groups involved， and also its a waste of social resources. More importantly， the whole social credit system is not established， and many people who are not honest are not being well-known， especially some interest groups， who continue to do something illegal and be against to the interests of the people. For example ： a mall makes a customer slipping injuries because of its improper protective measures， the mall will resist or refuse to perform by taking the relationship between compensation and other means. But not too many people get known to this case， the behavior of the mall has not been documented， and other customers do not know the malls bad behavior， so the malls credit has not been affected.

III. NEW COUNTERMEASURES TO SOLVE CIVIL EXECUTION PROBLEMS

The United States has a “debtor examination hearing” system in civil execution， which aims to allow the creditor to find the debtors property. A great advantage of this system is that the creditors are the ultimate party who get the interests， so the creditors are initiative enough to seek the debtor's property in order to get their own interests realized. This system also reduces the courts pressure objectively， since some creditors may provide valuable clues for the court， according to the clues， the court can find the debtors property available for execution within a short period of time， which also reduce the waste of resources for execution with efficiency. But the “debtor examination hearing” system does not solve the difficult problem basically. If starting from a new point of view， in case that the property subject matter can be quantified， transferring the money （the debtor owns to the creditor） into the money which the debtor owns to the court， so the court assumed the ultimate benefit obligations. If so， on the one hand， courts ability to chase the debtors property is much stronger than the creditors， which can combat such delaying， escaping acts harder； on the other hand， when comes to there is really no property available for execution， it can protect the interests of the loss of the parties first. Thats the so-called “responsible for the court verdict radically” At the same time， the great interests of responsibility conversion is that the court assumed the ultimate responsibility， in this case， the court belongs to the party who loss interests， so the court will take active measures to execute the debtor to reduce the negative execution and corruption.

As can be seen from above， to achieve the ultimate benefit of ownership and responsibility transformation is a new starting point. In order to achieve the responsibility transformation and put new initiatives on civil execution， the author proposes the following three points：

3.1 Accelerate the Establishment of Civil Execution Act and a Third Party as the Execution Security Agency

1） Accelerate the Establishment of Laws and Regulations Designed for Civil Execution

When facing the inadequate laws and regulations of civil execution， we appeal to accelerate the establishment of Civil Execution Act， innovate the modes of civil execution agencies and measures boldly. Only by this we can fully protect the interests of the people and safeguard the legal authority. For example， the provisions of the dissent acts in “Civil Law” offer the party or interested person may apply to the people's court to express objection， and requires a written objection. This provision is to protect the contents of the program of relief， however， once the parties or interested parties present the objections on the execution process， there is no relative regulations and provision on how to review the execution acts and what process should be rely on. There are so many problems like this， the fundamental reason is the inadequate of laws and regulations. The regulations are too surface for execution work， which sets circumstances for the officer to apply. The establishment of a special law for civil execution is imminent， which will not only help maintain social fairness and the rational use of social resources， but also provide laws and regulations to rely on and give the laws and regulations a better chance to play the deterrent role.

2） Introduce the Insurance Model and Establish the Execution Guarantee Agency

Social Insurance Law is crucial for the stereotypes， standardization and legalization of the social security system. Every person who engaged in law suit is worried about whether the final judgment can be executed or not. If the court adopt a similar model as the insurance company， establish a guarantee agency as a third party， which gives a layer of insurance to the execution acts， the risk of “cannot be executed” can be reduced a lot. In practice， the nation establish the national guarantee agencies， tentatively named the Executive Security Bureau， which perform double functions of the enforcement chamber and the insurance company. In every case， the bureau charges a certain percentage money like the insurance company do， and this money are in unified management by the Executive Security Bureau， and the money is used for advance payment and daily operations. The executor can apply to the Executive Bureau for the implementation safeguards in accordance with the court verdict， the cases which can be transferred into money payment should be paid by the Execution Bureau first， and then the Execution Security Bureau would chase money from the debtor. The laws should give the Execution Security Bureau the power to review， seizure and freeze properties， so the court can transfer the money （the debtor owns to the creditor） into the money which the debtor owns to the court， so the court assumed the ultimate benefit obligations. If so， the courts ability to chase the debtors property is much stronger than the creditors， which can combat such delaying， escaping acts harder. However， even so， the court also facing the circumstance that the execution cannot be put into act. For example， the debtor has no available property. The court may， like the insurance companies， use the money charged from every case to pay for the judgment. So each person can litigate a small portion of the money to protect their own interests to be realized and also give their lawsuit a layer of insurance.

3.2 Training Double-sided Talents to Strengthen Cadres of Execution

Executive officers of the traditional teams are talents who perform well in legal aspects， the establishment of Execution Guarantee Agencies not only need ones who have excellent talent of the legal expertise， but also well-educated in the field of economy， insurance， management， and science and other intellectual property. So to strengthen the cadres of execution， training double-sided talents in both social and legal fields is the primary task. The Executives should not only establish a correct outlook on life and values， protect fairness and impartialness of the law， maintain the legal authority， but also have excellent professional qualities in concrete work， have a high degree of sensitivity on the changes of global economy and China's economy， and better grasp the applicable law in handling process. The Execution Guarantee Bureau should build cadres of talents who strive to cultivate a strong sense of social responsibility and fair spirit of the law， and have profound cultural accomplishment and superb professional competence.

3.3 Build the Credit System of the Whole Society， and Enhance People's Awareness of the Law

Currently， the weak legal consciousness and loss of peoples credit have become an important hinder the social development of China's legal system. The overall level of China's socialism is still not high， the overall quality of the people is to be improved， and people's awareness of the law need to be further enhanced. Our whole society needs to establish a large credit information platform， in which the governments and credit institutions play as intermediaries， and through education and incentives to get personal and business credit as well as government departments documented in history， only by this can get the whole social credit open and transparent. After the establishment of the execution security agencies， the court have the right to public some of the cases which are not executed eventually， in accordance with the relevant categories. Of course this job should primarily protect necessary privacy. All sectors of the society could review the credit situations on individuals or companies， especially the circumstances of fulfilling legal obligations. According to these files， relative departments can take appropriate incentives and also objectively supervise the debtor to fulfill legal obligations initiatively.

IV. CONCLUSION

The difficulties of civil execution have been for dozens of years， we should seize its essence reason and take the new thinking of “responsibilities lie in the court， credits bound to personality”. Our nation take to protect the interests of the people as the fundamental starting point， assuming more responsibility， serving the people wholeheartedly， and find new countermeasures to solve the difficulties on civil execution fundamentally.

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作者簡介：高龄（1989.05-），女，黑龙江五大连池人，汉族，硕士研究生，研究方向：思想政治教育。