檢察監督執行制度探析

Abstract

The amendment of Civil Procedure Law in 2012 established the procuratorial supervision system over execution. Accordingly, the Procuratorate has the right to supervise illegal civil execution of the court, and the Court should review the relevant activities after receiving recommendations. The review is another review because the court had already completed the objection review and reconsideration review. The system has been implemented for some time and the questions are as follows: how is it going? Has it achieved the desired effect, and does it create new problems?
Although the Supreme Court had clearly opposed it, the procuratorial supervision system over execution is written into the legislation under the circumstances of the joint pilot of the Supreme People's Court and Supreme People's Procuratorate. The analysis of the legislative process indicates that the legislative reason is unclear, the legislative process is hasty and there is no spirit of absorption of force to defuse resistance. The implementation of system shows that the Court and the Procuratorate have different feelings about the effects of the system. The problems of selective supervision, “Final Adjudication Not Final” caused by supervision and intervention in the name of and supervision have been demonstrated.
The keynote of the procuratorial supervision system over execution is error-correction rather than support for assistance. The causes of executive power abuse involve many factors, such as the practical basis of more cases and avoiding of the execution, the configuration system of the right-power lack of remedy, the plight caused by insufficient judicial authority and legislature and uncertain value of enforcement activities. In the circumstance of many supervision channels, the procuratorial supervision system over execution does not correspond to the basic factor of the problems. Execution of the program focuses on efficiency. The supervision of the execution activities should adhere to the limited nature and rapidity of the procedure and do pay attention to prevention and control, while the procuratorial supervision does not meet the needs. Seeking help from the Procuratorate is a detour in addition to the execution system. In the view of the system design, the procuratorial supervision system over execution can not oversee the execution and constraints on executive power or enhance the legitimacy of execution activities. It is also difficult to solve the problem of the lack of supervision.
There are many channels for Procuratorate to involve in a variety of civilian executive activities. To strengthen the investigation and prosecution of misconduct may cause execution officers to prevent and reduce illegal execution; to strengthen the investigation and prosecution of refusing to implement the court decision can ensure the execution, prompt the party to perform automatically and facilitate the execution activities. The illegal execution can be radically reduced if the Procuratorate turns oversight into pre deterrence, which can encourage executive officers to focus on the rights of parties instead of procuratorial recommendations, and guarantees the parties back to the subject position from disadvantaged position.
To guarantee good functioning of civil execution is not a unique problem in China. Basic extraterritorial approach is that the country must guarantee the working of executive power; the rights of the parties shall be improved as the basic problem of the system; and executive judges supervise the executive officer. Supervision mechanism of the executive activities running within the system is feasible. The dominant position of the parties should be highlighted. The motivation of procedure should be strengthened by the parties’ negotiation. The separation mechanism of ruling power and implementing power should go further, which forms the operating mechanism of mutual supervision and restriction within the executive judges, the executive officers and the parties. We should strengthen direct participation and supervision of the parties and promote the development and evolvement of executive procedure by the parties’ negotiation, which can prevent the illegal executive activities.

Date of Award	30 Dec 2015
Original language	Chinese (Traditional)
Awarding Institution	City University of Hong Kong
Supervisor	Minkang GU (Supervisor)