"Difficulty In Execution" Is A Major "Chronic Disease" That Perplex The People'S Court.

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Not long ago, by the China Behavioral Law Society executive action research association, the Supreme Court Executive Board and the provincial high court, the first China Executive Forum held by the Municipal Intermediate Court was in the end.

The theme of this forum is the study of "separate legislation for civil enforcement".

It is understood that the "civil enforcement law" drafted jointly by the academic and judicial circles has already made a draft of the proposal.

The reporter of the deep report group interviewed Yang Rongxin, one of the main drafters of the draft, Professor of China University of Political Science and Law and director of the China behavioral law society's executive behavior research association.

Lack of law is a major cause of "difficulty in execution".

Reporter: what do you think caused the difficulty of implementation? How should we solve this problem?

Yang Rongxin: the reasons for "difficulty in execution" are complex, excluding the lack of enforcement funds and other self problems of the court, and there are still many situations that lead to the failure of execution.

For instance, the executor himself has no property to perform, or pfers, conceals property, malicious resistance to execution, administrative intervention, local protectionism and so on.

In addition, the lack of law is also a major cause of "difficulty in enforcement".

To solve these problems, I think the first is to deal with the implementation of legislation.

Enforcement is the use of state coercive force to protect the legitimate rights and interests of the executors. Therefore, execution must be carried out in strict accordance with the procedures. Only by following the law can we solve the problem of "execution difficulty" and "execution chaos" at the moment.

Reporter: in our civil procedure law, there are provisions on implementation. Why should we legislate separately?

Yang Rongxin: we make a comparison. Generally, there are more than 300 international common law enforcement provisions, while the provisions in China's civil procedure law only contain 34 articles.

Many executive systems only have principles and lack of rules for implementation.

For example, a court in Sichuan province encountered such a case.

The defendant Lee owed the plaintiff a 100 thousand yuan payment, and the court decided to pay by Li.

But Li said he had no money to pay for it.

Soon, the court found that Lee had a 5% stake in a trading company.

So the court asked the business company to liquidate, determine the value of Lee's shares and the annual bonus.

However, the trade company proposes that the law does not stipulate that the court can enforce the liquidation in execution and refuse it.

In this case, the court knows Li Mouyou's ability to perform, but because of the lack of law, it can not be enforced.

When drafting the civil procedure law, we want to implement separate legislation.

Reporter: you are the author of the enforcement provisions of the civil procedure law. Why do you advocate the single independent law now?

Yang Rongxin: when I drafted the civil procedure law, I had the idea of implementing a separate legislation.

But at that time, the structure of the civil procedure law itself was not mature enough. When we drafted, we pursued the principle of "less but better" and "Jian Erming", which was impossible for the implementation of separate legislation.

In fact, the civil procedure law is a law to solve litigation problems. Litigation is to confirm rights and obligations, while execution focuses on the realization of rights and obligations, so it is not in harmony to put them in one law.

In addition, enforcement and litigation are different in many aspects, such as tasks, procedures, measures, and effectiveness. Provisions are not appropriate in a law, and are also harmful to the perfection of execution procedures.

In 1991, shortly after the formal implementation of the civil procedure law, various problems in implementation gradually emerged. "Difficulty in enforcement" began to become a social problem. I immediately put forward the implementation of separate legislation and formally applied for research in 1999.

Reporter: it is understood that your lead research team drafted a draft of the civil enforcement law and merged it with the draft proposal prepared by the Executive Board of the Supreme Court to prepare for submission to the legislature.

Yang Rongxin: in 1999, shortly after the CPC Central Committee issued a request to solve the problem of enforcement, the "China Compulsory Enforcement Law trial draft" I applied for was launched as a major issue of the Ministry of education.

Since 2000, several professors and associate professors of China University of Political Science and Law and I have conducted investigations and studies in Beijing, Guangzhou, Wuhan and Xi'an, and have gone to France, Germany, Japan, Korea and other countries to investigate and form a draft of "enforcement law".

At the same time, the Executive Board of the Supreme Court has drafted a draft proposal. After many discussions, we decided to consolidate the two draft and named it the "civil enforcement law" draft.

In addition to the traditional civil execution, the contents include enforcement of certain administrative decisions, arbitral awards, notarized creditor's rights instruments and other non litigation legal instruments.

There are altogether 416 articles in this draft, which are divided into general provisions, general rules of execution procedures, implementation of monetary claims, realization of non monetary claims, preservation and enforcement, and special regulations on foreign enforcement procedures. There are 8 chapters.

There are also restrictions on high consumption in the draft.

Reporter: I heard that the "civil enforcement law" draft is specifically restricted to high consumption.

Yang Rongxin: Yes, this provision is contained in the seventh chapter. This chapter mainly talks about the mandatory measures for impairing execution, of which seventy-second is called "restricted consumption".

According to this provision, if the debtor fails to fulfill his obligations within the specified period after the execution of the order, he may, in accordance with the application of the creditors, decide in writing that the debtor shall not engage in business entertainment; hotel accommodation at the star level or above; purchase goods with a unit price of RMB 1000 or more; eat in a luxury restaurant; and enjoy high consumption by plane, ship first class and luxury car.

In violation of the provisions of this article, coercive measures shall be adopted in accordance with the relevant provisions of impair execution; if the circumstances are serious, criminal liability shall be investigated according to law.

Reporter: is this system able to supervise and urge the executors to fulfill their obligations?

Yang Rongxin: the system of restricting the high consumption is only one of the measures we take to the executors. It should form a resultant force with other enforcement measures; on the other hand, this measure is mainly a psychological pressure on the executed people, and urges them to eliminate fluke psychology.

Of course, this system is not perfect at present, how to define the high consumption, who will investigate and collect evidence for high consumption behavior, and so on.

Refining the process, the Executive Board will be divided into 3 chambers.

Reporter: whether the executive power should be placed in court, the legal profession has had many arguments. How do you view this problem?

Yang Rongxin: there is a dispute about this issue between academia and judicial practice. Some people have proposed to divestiture the executive power from the court and set up a special department. Others have proposed to pfer the executive power to the public security department.

My view is that the executive power should be placed in the courts. The national executive agencies can be referred to as the General Administration, bureaux, sub bureaus and branches. Local bureaus, sub bureaus and sub bureaus can be set up across administrative regions, with vertical leadership between the executive bodies at the upper and lower levels.

If the executive agencies are separated from local management, they can effectively overcome local protectionism and help to resolve the bad situation of "difficult implementation".

Reporter: how is the draft proposal issued?

Yang Rongxin: in the draft, we devoted a section to this problem, basically maintained the existing execution system, and stipulate that the executive board is under the leadership of the superior executive board.

We have refined the execution process. The executive board consists of 3 institutions, namely, the enforcement court, the enforcement court and the execution court.

Among them, the enforcement court is responsible for carrying out the admissibility, examination and supervision of the case, and is responsible for the changes in the trial and the execution of the referee, the execution objection and the execution of the protest, etc.; the enforcement court is responsible for adopting compulsory enforcement measures to deal with the non controversial matters in the enforcement procedure; and carries out the cases of many execution actions and objections filed by the trial court for trial and judgment in the execution procedure due to disputes over substantive rights and obligations.

Court auctions can avoid corruption.

Reporter: the civil procedure law stipulates that if the executed person fails to perform within a specified time, the people's court may, in accordance with the relevant provisions, hand over or sell off the property seized or seized.

But in recent years, judicial auction seems to be one of the most serious corruption cases in court. Is this related to the lack of law?

Yang Rongxin: judicial auction is an important link in the execution process, which contains a wide range of contents and systems.

However, there are few specific provisions on judicial auction in China.

In the judicial practice, the court basically commissioned auction companies to auction, but because of the inability to rely on it, the judge's discretion was too large, which led to some illegal and disciplinary problems.

Reporter: it is said that the proposed draft provides that the executing agency can auction itself.

Yang Rongxin: Yes, the proposed draft stipulates that the real estate that is auctioned off can be commissioned by a legitimate auction institution or auctioned by an executing agency, but it must be approved by a higher level executive body.

At present, the maritime courts are auctioning themselves to ships and other seizure items, which rarely cause corruption because the procedures are clear and the responsibilities are clear.

I believe that auctioning by the courts can reduce rent seeking links and increase the responsibility of executing agencies, thereby avoiding corruption.