Abstract
Law enforcement, as the last stage of the civil procedure, not only directly affects the rights of the parties, but also the respect for law and the authority of the courts, as well as social stability and economic development. The goal of judgment is to define legal rights among the parties, whereas enforcement of court orders is to realize legal rights, from this point of view, enforcement procedure is the continuation of trial procedure. Law enforcement and its legislature forms an important part of the civil procedure law. The realization of legal rights by law enforcement not only concerns the functioning of the courts, but also the protection of legal rights and the authority of the judiciary.
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References
Schaefer, H.-B., The Significance of a Well-Functioning Civil Law in the Process of Development, Paper presented at the Conference of the Latin Americans Law and Economics Association in Quito (Ecuador) June 15th to June 17th 1998, Manuscript, 1998, p. 4.
This is an unpublished internal report provided by the Supreme People’s Court. See Investigation Report about the implementation of the Regulation on Strict Implementation on Time Limit (2000), by the Research Team of Chongqing High People’s Court, 2001.
The Supreme People’s Court: Regulation on the Enforcement of Judgments, No. 15 (1998) Legal Interpretation.
According to the People’s Court Organization Act 1954, the courts not only adjudicate the case, but also execute the court orders/decisions by itself due to the few filings in the 1950s. Most of the civil cases were settled by mediation or arbitration rather than by adjudication. The adjudication of cases and enforcement of court orders/decisions thus were under the same tribunal. See He, Lan Jie / Lu, Min Jian (eds.), Judiciary in Contemporary China, Contemporary China Publication, 1993, p. 297.
Art. 209 II, Civil Procedure Code (1991).
The Supreme People’s Court: Some Opinions on the Application of Civil Procedure Code, 1992. Art 254–265
The Rechtpfleger has, inter alia, responsibility for the local and register, and for seizures of immovable property as well as authorizing garnishment of debts. He also plays a role in guardianship and succession cases, and has recently taken on extensive responsibilities in relation to insolvency proceedings. See German Rechtspflegergesetz (RPflG) § 2 and § 3.
By contrast, under the relevant Spanish law, the categories of enforceable title are comparatively wide. Any private contractual documents can also be used as the basis for enforcement. In France, the French law recognizes a number of types of instruments that allow a creditor to proceed to enforcement. These includes bills of exchange, unpaid checks and unpaid rent arising out of a written contract for the lease of immovable property. See Kennett, Wendy A., Enforcement of Judgments in Europe, Oxford University Press, 2000, p. 69.
Liu, Tong Hai and Zhu, Xiao Long, Is the Court Fee Reasonable? in: China Lawyer (12) 2002, p. 40.
Only 16.7% of the claim was compensated. Source: Tan, Shi Gui, Research on Judicial Reform in China, China Law Press, 2000, p. 283.
Ditto.
Tan, Shi Gui, Research on Judicial Reform in China, China Law Press, 2000, p. 283. The fiscal income of the city (Haikou) is around 1.4 billion Yuan in 1998.
Quoted from Tan, Shi Gui, Research on Judicial Reform in China, China Law Press, 2000, p. 283.
I was told by some courts that the normal targeted settlement ratio was around 65% to 78% of the filings for compulsory execution. Furthermore see Luo, Shu Ping (Director of the Enforcement Bureau of the High People’s Court of Si Chuan Province), The Difficulties in Law Enforcement Difficulties and Chaotic Situation, in China Lawyer, (12) 2002, p. 44.
China Law Year Book, 1996–1998.
Calculation based on China Law Year Book, 1991–2000.
Zhang, Wei Ying / Ke, Rong Zhu, “The adverse selection in civil litigation and its interpretation — an empirical study”, in (2) 2002 China Social Science, p. 31.
Report from the 5th Bejing University New Year Forum on the topic of ‘Economic Reform and Social Trust’. In: www.sohu.com 07.01.2003.
Liu, Tong Hai and Zhu, Xiao Long, Is the Court Fee Reasonable? in: China Lawyer (12) 2002, p. 40.
According to the Annual Report of the Supreme People’s Court, 1999.
Regulation on Enforcement of Judgments, by the Supreme People’s Court, 1998.
Tan, Shi Gui, Research on Judicial Reform in China, China Law Press, 2000, p. 285.
See Kennett, Wendy A., Enforcement of Judgments in Europe, Oxford University Press, 2000, p. 99 ff. It is recommended that, for tracing the immovable property, technological innovation like computerization may be of great help. Internet technology shall be introduced in future and registers shall be open to the general public so that they can get access to the information related to enforcement.
Qi, Shu Jie, Research on Reform of Civil Procedure Law, Xiamen University Press, 2000, p. 257.
Qi, Shu Jie, Research on Reform of Civil Procedure Law, Xiamen University Press, p. 250.
Qi, Shu Jie, Research on Reform of Civil Procedure Law, Xiamen University Press, p. 251.
Qi, Shu Jie, Research on Reform of Civil Procedure Law, Xiamen University Press, 2000, p. 257.
Art. 209 II, Civil Procedure Code (1991).
Compare Wu, Dong Yu and Hua, Shi, An Investigation and Comment on the Internal Setup and Categorized Personnel Management of the People’s Courts, in: Zhang, Wei Ping, Review on Judicial Reform, Vol. 4, 2002, p. 463, under Footnote
According to Mr. Luo, Shu Ping, director of the Execution Bureau of the High Court of Si Chuan province, due to the law quality of the personnel, cases are often delayed by the executors by excuses.
Kennett, Wendy A., Enforcement of Judgments in Europe, Oxford University Press, 2000, p. 77 ff.
Supra note 509, 510.
The Supreme People’s Court: Some Opinions on the Application of Civil Procedure Code, 1992.
The Execution Bureau of the High People’s Court of Fujian province, Impossible enforcement and the risk of the private and commercial exchange, in: People’ Judiciary, (10) 2002, pp. 26, 27.
Ditto.
Qi, Shu Jie, Research on Reform of Civil Procedure Law, Xiamen University Press, p. 250
Ditto.
Qi, Shu Jie, Research on Reform of Civil Procedure Law, Xiamen University Press, 2000, p. 250. Compare: Schaefer, H.-B., Die Bedeutung des Zivilrechts fuer den Entwicklungsprozess, Braunschweigische Wissenschaftliche Gesellschaft, J. CramerVerlag, 2001,p. 135.
Ditto.
Tan, Shi Gui, Research on Judicial Reform in China, China Law Press, 2000, pp. 284, 285, 287.
Ditto.
Ditto.
Luo, Shu Ping, The Difficulties in Law Enforcement Difficulties and Chaotic Situation, in China Lawyer, (12) 2002, p. 47. Compare: Tan, Shi Gui, Research on Judicial Reform in China, China Law Press, 2000, p. 288.
Luo, Shu Ping (Director of the Execution Bureau of the High People’s Court of Si Chuan Province), The Difficulties in Law Enforcement: Difficulties and Chaotic Situation, in China Lawyer, (12) 2002, pp. 43, 46.
Ditto.
Ditto, p 47.
There is no specific qualification requirement for executors. Some of the executors do not have systematic legal education and training before taking the work. They are assigned to the job after the calling for reinforcement of enforcement in recent years. See Luo, Shu Ping (Director of the Enforcement Bureau of the High People’s Court of Si Chuan Province), The Difficulties in Law Enforcement: Difficulties and Chaotic Situation, in China Lawyer, (12) 2002, p. 47.
The Supreme People’s Court, Regulation on Enforcement of Judgments, 1998, Art. 113, 118.
In Civil Procedure Code and relevant regulations it only regulates that the entrusted courts “shall not reject” any assignment by the trial courts (the principal courts), Art. 209 II, Civil Procedure Code (1991).
Tan, Shi Gui, Research on Judicial Reform in China, China Law Press, 2000, p. 288; Qi, Shu Jie, Research on Reform of Civil Procedure Law, Xiamen University Press, 2000, p. 270.
The Supreme People’s Court, Regulation on Enforcement of Judgments, 1998, Art. 2.
Supra Zhu, Xiao Long, Is the Court Fee Reasonable? in: China Lawyer (12) 2002, p. 40 note 535.
Supra note 525.
Supra note 531
See report from the National People’s Congress Assembly, in www.sina.com.cn 10.03.2003.
Compulsory enforcement mechanism is an important part of the judiciary. There are mainly 3 types of legislature in respect of enforcement law: the first is to incorporate the compulsory enforcement mechanism into the Civil Procedure Code, like Germany; the second is to promulgate a separate enforcement law, like Austria, Japan, Belgium and Taiwan; the third is to incorporate the enforcement mechanism into bankruptcy law and mix it with the bankruptcy legislature, like Swiss land and Turkey. See Liang, Shu Wen, Theory of enforcement and practicing, People’s Court Publication, 1993, pp. 183, 184, 185.
Qi, Shu Jie, Research on Reform of Civil Procedure Law, Xiamen University Press, 2000, p. 253.
Ditto.
Luo, Shu Ping (Director of the Enforcement Bureau of the High People’s Court of Si Chuan Province), The Difficulties in Law Enforcement: Difficulties and Chaotic Situation, in China Lawyer, (12) 2002, p. 47.
Qi, Shu Jie, Research on Reform of Civil Procedure Law, Xiamen University Press, 2000, p. 275..
Qi, Shu Jie, Research on Reform of Civil Procedure Law, Xiamen University Press, 2000, p. 286.
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(2006). The Problem of Enforcement of Judgments by the Courts. In: Court Delay and Law Enforcement in China. Gabler. https://doi.org/10.1007/978-3-8350-9012-5_6
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