執行不能案件退出機制研究 —— 以個人被執行人案件為研究對象

Abstract

The backlog of execution cases is a major issue currently troubling China’s judicial practice. From difficult to impossible execution, the exploration of cracking the backlog of execution cases and achieving orderly exit of cases is constantly deepening. The termination of this execution procedure, as a way of closing a case gradually formed by the people’s court in the execution practice, is determined by means of judicial interpretation, which provides a basis for temporarily withdrawing from the execution procedure for cases where there is no property available for execution. This system has played a huge role in effectively solving practical problems, but a large number of sleeping cases that cannot be executed have gradually become a persistent problem that restricts the efficient operation of the execution process. The rights and obligations of the parties involved in the case have been in an unstable state for a long time, ultimately affecting the normal market trading order.

This thesis takes the case of an individual subject to execution as the perspective, starting from the basic theory of inability to execute, and combining with the actual execution, analyzes the practical difficulties encountered in resolving cases of inability to execute. It discusses the connotation and necessity of constructing an exit mechanism for cases of inability to execute, and objectively examines the current judicial practice of the individual bankruptcy system and personal debt liquidation operation and problems in the pilot exit mechanism for cases of inability to execute. On the basis of drawing on the experience of foreign countries (or regions) and based on Chinese actual national conditions, this thesis proposes optimization paths and useful suggestions for the withdrawal mechanism of cases where individual execution cannot be carried out.

The main contribution of this paper lies in three aspects: Firstly, the concept of inability to execute was proposed, clarifying that it is an objective form of the debtor's property capacity; A detailed and specific analysis and research have been conducted on the substantive standards and procedures that cannot be recognized for execution, forming a relatively complete recognition system; The second is to propose a path to solve the problem of individual execution failure before the establishment of personal bankruptcy, which is to establish an execution time limit system, clarify that after 10 years of losing the effectiveness of compulsory execution after the case is finalized, the execution will automatically terminate and cannot be enforced again; The third is to establish a personal bankruptcy system as a long-term solution to the withdrawal of cases that cannot be executed by individuals, expanding the path for resolving cases that cannot be executed.

Date of Award	30 Jan 2024
Original language	Chinese (Traditional)
Awarding Institution	City University of Hong Kong
Supervisor	Chi Hin Peter CHAN (Supervisor)