民事案件审执关系研究

发布时间：2018-12-15 05:46

【摘要】：关于民事案件中审判权和执行权的关系,在理论界存在诸多观点上的分歧,有认为应归属于同一主体,有认为应彻底分离,分属不同主体。在我国民事审执关系体制的发展历程中,审判权和执行权是在同一主体中相互交织,不断磨合,但直到目前审判权和执行权逻辑关系也未能得到彻底理顺,导致难以适应新形势下司法实践的需求,人民群众对法院民事执行工作怨言颇多。加强对民事案件审执关系的理论研究有利于实践过程中正确处理审判权和执行权的逻辑关系,促进审判权和执行权的规范运行。我国民事案件审执关系在经历了“审执合一”到“审执相对分离”的不同历史阶段,但从现阶段来看,我国现行的审执关系体制具有改革的现实必要性和法理必要性,现实必要性包括了“执行难”、“执行乱”现象的亟待解决,人民法院工作理念和工作力量无法满足现实需求,法理必要性包括执行工作性质与人民法院司法属性的矛盾以及人民法院自裁自执的逻辑矛盾。综合参考国外的执行体制模式和我国的执行现状、人民群众的传统观念以及节约司法资源、整合行政资源的目的,我国的审执关系应当采取“审执彻底分离”的模式,即审判权由人民法院行使,而执行权则彻底从人民法院当中分离出来,由行政机关行使。在众多行政机关当中,公安机关是行使执行权的最佳主体,公安机关本身属于行政机关,拥有行政机关的特质,与执行权的性质相吻合,对比作为司法机关的人民法院更具有属性优势,同时公安机关相比其他行政机关又具有自身特点,公安机关具有法律专业优势,强制力优势,获取信息优势,另外公安机关的威慑力显然也要高于其他行政机关,这些优势对于执行工作都具有积极意义。由公安机关行使执行权的同时应对执行权进行进一步细分,分为执行裁判权和执行实施权,将执行裁判权划予法院,而执行实施权则交予公安机关,避免“运动员裁判员同体”的现象出现。由公安机关行使执行实施权要注重制度建设,包括执行启动、执行措施以及执行监督,确保执行权的运行能够有章可循,有规可依,将权力装进制度的笼子里。
[Abstract]:As to the relationship between judicial power and executive power in civil cases, there are many differences of views in the theoretical circle, some think that they should belong to the same subject, others think that they should be completely separated and belong to different subjects. In the course of the development of the system of civil adjudication and enforcement in our country, the judicial power and the executive power are intertwined with each other in the same subject, but until now, the logical relationship between the judicial power and the executive power has not been completely straightened out. As a result, it is difficult to adapt to the needs of judicial practice under the new situation, and the people complain a lot about the civil execution of the court. Strengthening the theoretical study on the relationship between adjudication and execution in civil cases is conducive to correctly handling the logical relationship between judicial power and executive power in practice and promoting the normative operation of judicial and executive power. The relationship between trial and execution in civil cases in our country has experienced different historical stages from "combination of trial and execution" to "relative separation of trial and enforcement". However, from the current stage, the current system of trial and enforcement in our country has the realistic necessity of reform and the necessity of legal theory. The necessity of reality includes the phenomenon of "difficult execution" and "chaos of execution", and the people's court's working concept and work force cannot meet the actual needs. The necessity of legal theory includes the contradiction between the nature of execution and the judicial attribute of the people's court and the logical contradiction between the self-adjudication and the self-enforcement of the people's court. Referring to the implementation system model of foreign countries and the present situation of execution in China, the traditional concept of the people and the purpose of saving judicial resources and integrating administrative resources, the relationship between trial and execution in China should adopt the mode of "complete separation of adjudication and execution". The judicial power is exercised by the people's court, and the executive power is completely separated from the people's court and exercised by the administrative organ. Among the many administrative organs, the public security organs are the best subjects to exercise the executive power. The public security organs themselves belong to the administrative organs and have the characteristics of the administrative organs, which are consistent with the nature of the executive power. Compared with the people's court as the judicial organ, the people's court has the attribute advantage, and the public security organ has its own characteristics compared with other administrative organs. The public security organ has the advantage of legal specialty, the advantage of coercive power, and the advantage of obtaining information. In addition, the deterrent power of public security organs is obviously higher than that of other administrative organs. When the public security organ exercises the power of execution, the power of execution shall be further subdivided into the power of execution and the power of execution, and the power of execution shall be assigned to the court, and the power of execution shall be handed over to the public security organ. Avoid the phenomenon of "athletes referees in the same body". The public security organs should pay attention to the construction of the system, including the implementation of the start-up, the implementation of measures and the implementation of supervision, to ensure that the operation of the executive power can be governed by rules and regulations, and put the power in the cage of the system.
【学位授予单位】：江西财经大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D925.1

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