美国州法判决后财务开示制度及其借鉴
发布时间：2018-11-01 13:10
【摘要】：判决后的财务开示制度是美国民事执行的重要组成部分,该制度与藐视法庭和伪证罪组成的规则体系是美国保障执行顺利进行的“达克摩斯之剑”,在这种严厉的法律规定面前,被执行人将财务开示视为义务,从而督促其自觉履行判决,这也是为什么美国不存在“执行难”问题的重要原因。判决后的财务开示制度在联邦民事诉讼规则之中并无明文规定,相反,众多州的州法中却有详细规定和长时间的司法实践。本文即是研究美国州法判决后财务开示制度,在美国,判决后的财务开示制度已经在司法实践中运行了数十年,其制度早已逐步完善,在司法实践过程中出现的问题,已被相关修正案和典型判例解决,该制度日益适应司法实践的需要。而我国自1997年初步确立了财产报告制度,发展至今仍然存在不完善的地方,导致司法适用的过程中产生歧义;2017年最高法院又出台了《最高人民法院关于民事执行中财产调查若干问题的规定》,但是该规定仍然比较笼统,而且很多理论问题没有澄清。比如,当事人拒不报告相关财产信息严重者应当追究刑事责任,但司法解释并没有明确以何种罪名追究;最可能的罪名是拒不执行判决裁定罪,但是司法解释并未明确人民法院要求被执行人报告财产信息时是否使用裁定,如果不是,就不能追究拒不执行判决裁定罪。因此,本文首先详细介绍美国州法判决后的财务开示制度,选取美国最具代表性的两个州的民事诉讼法的相关规定进行研究。厘清美国州法判决后财务开示制度的结构体系,总结出判决后财务开示的程序、范围、例外和救济制度。然后,将我国执行方面的制度同美国州法判决后的财务开示制度进行比较研究,介绍我国财产报告制度的司法实践运行状况。文章通过上述的研究论证,最后提出应该如何借鉴美国州法判决后的财务开示制度的具体方法,比如,强化被执行人主动报告财务信息;强调报告的财务信息与案件的相关性;建立独立权威的执行机构等措施,以保障我国财产报告制度在司法实践中顺利运行,进而解决我国亟待解决的“执行难”问题。
[Abstract]:The system of financial disclosure after judgment is an important part of civil enforcement in the United States, and the rule system composed of contempt of court and perjury is the "sword of Darkmoz" that the United States guarantees the execution of smoothly. In the face of such strict laws and regulations, the executor regards financial disclosure as an obligation to urge him to fulfill the judgment voluntarily, which is the important reason why the United States does not have the problem of "difficult to enforce". The system of financial disclosure after judgment is not expressly stipulated in the rules of federal civil procedure, on the contrary, many states have detailed regulations and long judicial practice in state law. This article is to study the financial disclosure system after the judgment of American state law. In the United States, the financial disclosure system after judgment has been running in judicial practice for decades, and its system has been gradually improved, and the problems in the process of judicial practice have emerged. It has been solved by relevant amendments and typical precedents, and the system is more and more suitable for the needs of judicial practice. The property reporting system has been established in China since 1997, and there are still some imperfections in its development, which leads to ambiguity in the process of judicial application. In 2017, the Supreme Court issued the "Supreme people's Court on several issues in the civil execution of property investigation", but the provisions are still relatively general, and many theoretical issues have not been clarified. For example, if the parties refuse to report the relevant property information seriously, they should be investigated for criminal responsibility, but the judicial interpretation does not make it clear what kind of charges to be investigated; The most likely charge is refusing to execute the judgment and ruling, but the judicial interpretation does not make it clear whether the people's court requires the executor to report property information or not. If not, he cannot be investigated for refusing to execute the judgment or not. Therefore, this paper firstly introduces the financial disclosure system after the judgment of American state law in detail, and studies the relevant provisions of the civil procedure law of the two most representative states in the United States. This paper clarifies the structure system of financial disclosure system after judgment in American state law, summarizes the procedure, scope, exception and relief system of financial disclosure after judgment. Then, the author makes a comparative study of the enforcement system of our country and the financial disclosure system after the judgment of American state law, and introduces the judicial practice of the property reporting system in our country. Through the above research and argumentation, the paper puts forward how to draw lessons from the financial disclosure system after the judgment of American state law, for example, to strengthen the executor's initiative to report the financial information, to emphasize the relevance between the financial information of the report and the case. In order to ensure the smooth operation of the property report system in judicial practice, we should establish an independent and authoritative executive body, and then solve the problem of "difficult execution" that needs to be solved urgently in our country.
【学位授予单位】：湘潭大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D971.2;DD915.2;D925.1
本文编号：2304019
[Abstract]:The system of financial disclosure after judgment is an important part of civil enforcement in the United States, and the rule system composed of contempt of court and perjury is the "sword of Darkmoz" that the United States guarantees the execution of smoothly. In the face of such strict laws and regulations, the executor regards financial disclosure as an obligation to urge him to fulfill the judgment voluntarily, which is the important reason why the United States does not have the problem of "difficult to enforce". The system of financial disclosure after judgment is not expressly stipulated in the rules of federal civil procedure, on the contrary, many states have detailed regulations and long judicial practice in state law. This article is to study the financial disclosure system after the judgment of American state law. In the United States, the financial disclosure system after judgment has been running in judicial practice for decades, and its system has been gradually improved, and the problems in the process of judicial practice have emerged. It has been solved by relevant amendments and typical precedents, and the system is more and more suitable for the needs of judicial practice. The property reporting system has been established in China since 1997, and there are still some imperfections in its development, which leads to ambiguity in the process of judicial application. In 2017, the Supreme Court issued the "Supreme people's Court on several issues in the civil execution of property investigation", but the provisions are still relatively general, and many theoretical issues have not been clarified. For example, if the parties refuse to report the relevant property information seriously, they should be investigated for criminal responsibility, but the judicial interpretation does not make it clear what kind of charges to be investigated; The most likely charge is refusing to execute the judgment and ruling, but the judicial interpretation does not make it clear whether the people's court requires the executor to report property information or not. If not, he cannot be investigated for refusing to execute the judgment or not. Therefore, this paper firstly introduces the financial disclosure system after the judgment of American state law in detail, and studies the relevant provisions of the civil procedure law of the two most representative states in the United States. This paper clarifies the structure system of financial disclosure system after judgment in American state law, summarizes the procedure, scope, exception and relief system of financial disclosure after judgment. Then, the author makes a comparative study of the enforcement system of our country and the financial disclosure system after the judgment of American state law, and introduces the judicial practice of the property reporting system in our country. Through the above research and argumentation, the paper puts forward how to draw lessons from the financial disclosure system after the judgment of American state law, for example, to strengthen the executor's initiative to report the financial information, to emphasize the relevance between the financial information of the report and the case. In order to ensure the smooth operation of the property report system in judicial practice, we should establish an independent and authoritative executive body, and then solve the problem of "difficult execution" that needs to be solved urgently in our country.
【学位授予单位】：湘潭大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D971.2;DD915.2;D925.1
【参考文献】
相关期刊论文 前4条
1 张虎;;中美民事执行程序中的“财产披露”制度比较研究[J];政治与法律;2013年11期
2 高春红;;民事执行中被执行人财产报告制度的现状与完善[J];法制与社会;2013年31期
3 王伟国;;诚信体系建设法治保障的探索与构想[J];中国法学;2012年05期
4 钱颖萍;;论我国被执行人财产报告制度之完善[J];重庆理工大学学报(社会科学);2011年05期
相关硕士学位论文 前4条
1 何晓斐;我国被执行人财产报告制度研究[D];河南大学;2016年
2 裴成君;关于我国民事“执行难”问题的几点探讨[D];云南财经大学;2015年
3 张磊;民事案件执行难问题研究[D];山东大学;2014年
4 罗婷婷;论执行中的财产报告制度[D];西南政法大学;2011年
，本文编号：2304019
本文链接：https://www.wllwen.com/falvlunwen/falilunwen/2304019.html
