论我国民事执行财产发现制度及完善
发布时间：2018-08-02 17:14
【摘要】：民事执行程序，是指人民法院的执行组织，依照法定的程序，行使司法执行权，强制义务人履行已经发生法律效力的人民法院的判决、裁定或其他法律文书所确定的义务的活动。民事执行程序是民事诉讼过程中的重要组成部分，其设立的目的是为了确保法院的生效裁判文书的一致性，当事人的合法权益得以实现，国家的法律权威和尊严得以彰显。可以说民事执行程序是维护申请执行人权利的最后“堡垒”，是使生效法律文书确定的内容得以实现的关键途径，它不仅关系到个案中对申请执行人权利的保护，也关系到整个法律体系中法律威严与信仰的树立。 而在现实司法实践中，“被执行财产难寻”已成为困扰执行工作的桎梏之一，由此造成了大量执行案件不得不中止或终结执行，极大地破坏了国家法律的权威性，损害了申请执行人的合法权益。固然，执行财产难以发现是由各方面因素的合力形成的，但是目前立法体系的不完善是一大原因。本文拟从“被执行财产难寻”的角度出发，通过对民事执行中的财产发现制度进行理论和实践探析，结合我国立法及司法实务现状，，借鉴、比较域外执行财产调查制度，以此探究我国民事执行财产调查制度的优势和存在的不足，并进一步设计和构建，以期完善中国的财产发现制度，有利于民事强制执行全局的规范运行。 本文由引言、正文和结语三大部分组成，其中正文分为四个部分。 第一部分是对民事执行中的财产发现制度整体的概述。该部分首先对民事执行中的财产发现的概念、内容、理论基础、发展历程、在民事执行程序中的地位和作用进行了论述和分析。其次分析了财产发现主体、财产发现客体以及财产发现程序方面的理论问题。 第二部分是对我国民事执行财产发现制度的立法现状进行评析。首先罗列、整理了中国对民事执行财产发现制度的立法规定，我国没有统一的强制执行法，对民事执行财产调查制度的规定散见于《民事诉讼法》和众多司法解释、法规条文中。然后从法律规定的我国执行财产调查的主要途径：执行机构、申请执行人、被执行人、协助执行等方面对立法现状进行分析。 第三部分是对域外民事执行中的财产发现制度的比较研究。首先对典型的国家、地区富有特色的制度进行考察和借鉴。其次对域外国家的制度进行综合评述和比较分析，以探寻适合我国的改革路径。 第四部分是对我国民事执行中财产发现制度构建的建议。通过执行机关依职权调查、申请执行人提供财产线索、被执行人财产申报制度、社会协助执行体系四个方面进行论述，对我国现行司法执行的立法制度和法律策略方面对财产发现的具体制度提出完善建议，为有效解决我国债务类案件司法执行难的问题提供实用的法理基础，以期我国的民事执行财产发现制度能充分地在民事执行中发挥积极价值。
[Abstract]:The civil execution procedure means that the enforcement organization of the people's court, in accordance with the legal procedures, exercises the judicial enforcement power to compel the obligor to perform the judgment of the people's court which has already had legal effect, The activity of an obligation established by a ruling or other legal instrument. Civil execution procedure is an important part in the process of civil litigation. Its purpose is to ensure the consistency of the effective judgment documents of the court, the realization of the legitimate rights and interests of the parties, and the legal authority and dignity of the state. It can be said that civil execution procedure is the last "fortress" to safeguard the right of the application executor, and it is the key way to realize the content determined by the effective legal document. It is not only related to the protection of the right of the application executor in the case. It is also related to the establishment of law majesty and belief in the whole legal system. However, in the actual judicial practice, "being executed property is difficult to find" has become one of the shackles that perplexed the execution work, which caused a large number of execution cases to be suspended or ended, which greatly damaged the authority of the national law. Damage to the legitimate rights and interests of the applicant executor. Although the executive property is difficult to find out by the combined forces of various factors, the imperfect legislative system is a major reason. Based on the theory and practice of the property discovery system in civil execution, this paper, from the point of view of "being executed property is difficult to find", compares the property survey system implemented abroad by combining with the present situation of legislation and judicial practice in our country. This paper explores the advantages and disadvantages of the property investigation system of civil enforcement in China, and further designs and constructs it in order to perfect the system of property discovery in China, which is conducive to the standardized operation of the overall situation of civil enforcement. This paper consists of three parts: introduction, text and conclusion, in which the text is divided into four parts. The first part is an overview of the system of property discovery in civil execution. This part firstly discusses and analyzes the concept, content, theoretical basis, development course, position and function of property discovery in civil execution procedure. Secondly, it analyzes the theoretical problems in the subject of property discovery, the object of property discovery and the procedure of property discovery. The second part is the analysis of the current legislation of the civil execution of property discovery system in China. First of all, it lists and collates the legislative provisions of China's civil enforcement property discovery system. There is no uniform enforcement law in China, and the provisions on the civil execution property investigation system are scattered in the Civil procedure Law and numerous judicial interpretations. In the text of a statute. Then it analyzes the current situation of the legislation from the following aspects: the enforcement agency, the application executor, the assistant enforcement and so on, which are the main ways to carry out the property investigation in our country as stipulated by law. The third part is the comparative study of the property discovery system in the foreign civil enforcement. First of all, the typical countries and regions full of characteristics of the system of inspection and reference. Secondly, it makes a comprehensive review and comparative analysis of the system of foreign countries in order to explore the reform path suitable for our country. The fourth part is to our country civil execution property discovery system construction suggestion. Through the investigation of the executive organ according to its authority, the application for the executor to provide the clue of property, the property declaration system of the person subjected to execution, and the social assistance implementation system are discussed in four aspects. On the aspect of legislation system and legal strategy of current judicial execution in our country, the author puts forward some perfect suggestions on the specific system of property discovery, which provides a practical legal basis for effectively solving the problem of difficult judicial execution of debt cases in China. It is hoped that the discovery system of civil execution property in our country can give full play to the positive value in civil execution.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.1
本文编号：2160124
[Abstract]:The civil execution procedure means that the enforcement organization of the people's court, in accordance with the legal procedures, exercises the judicial enforcement power to compel the obligor to perform the judgment of the people's court which has already had legal effect, The activity of an obligation established by a ruling or other legal instrument. Civil execution procedure is an important part in the process of civil litigation. Its purpose is to ensure the consistency of the effective judgment documents of the court, the realization of the legitimate rights and interests of the parties, and the legal authority and dignity of the state. It can be said that civil execution procedure is the last "fortress" to safeguard the right of the application executor, and it is the key way to realize the content determined by the effective legal document. It is not only related to the protection of the right of the application executor in the case. It is also related to the establishment of law majesty and belief in the whole legal system. However, in the actual judicial practice, "being executed property is difficult to find" has become one of the shackles that perplexed the execution work, which caused a large number of execution cases to be suspended or ended, which greatly damaged the authority of the national law. Damage to the legitimate rights and interests of the applicant executor. Although the executive property is difficult to find out by the combined forces of various factors, the imperfect legislative system is a major reason. Based on the theory and practice of the property discovery system in civil execution, this paper, from the point of view of "being executed property is difficult to find", compares the property survey system implemented abroad by combining with the present situation of legislation and judicial practice in our country. This paper explores the advantages and disadvantages of the property investigation system of civil enforcement in China, and further designs and constructs it in order to perfect the system of property discovery in China, which is conducive to the standardized operation of the overall situation of civil enforcement. This paper consists of three parts: introduction, text and conclusion, in which the text is divided into four parts. The first part is an overview of the system of property discovery in civil execution. This part firstly discusses and analyzes the concept, content, theoretical basis, development course, position and function of property discovery in civil execution procedure. Secondly, it analyzes the theoretical problems in the subject of property discovery, the object of property discovery and the procedure of property discovery. The second part is the analysis of the current legislation of the civil execution of property discovery system in China. First of all, it lists and collates the legislative provisions of China's civil enforcement property discovery system. There is no uniform enforcement law in China, and the provisions on the civil execution property investigation system are scattered in the Civil procedure Law and numerous judicial interpretations. In the text of a statute. Then it analyzes the current situation of the legislation from the following aspects: the enforcement agency, the application executor, the assistant enforcement and so on, which are the main ways to carry out the property investigation in our country as stipulated by law. The third part is the comparative study of the property discovery system in the foreign civil enforcement. First of all, the typical countries and regions full of characteristics of the system of inspection and reference. Secondly, it makes a comprehensive review and comparative analysis of the system of foreign countries in order to explore the reform path suitable for our country. The fourth part is to our country civil execution property discovery system construction suggestion. Through the investigation of the executive organ according to its authority, the application for the executor to provide the clue of property, the property declaration system of the person subjected to execution, and the social assistance implementation system are discussed in four aspects. On the aspect of legislation system and legal strategy of current judicial execution in our country, the author puts forward some perfect suggestions on the specific system of property discovery, which provides a practical legal basis for effectively solving the problem of difficult judicial execution of debt cases in China. It is hoped that the discovery system of civil execution property in our country can give full play to the positive value in civil execution.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.1
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本文编号：2160124
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