중국 민사강제집행법의 입법동향과 과제(中国民事强制执行法的立法动向与课题) = Legislative Trends and Prospect of Civil Enforcement Law in China

국문 초록 (Abstract)

연구자의 관점은 현 집행기관인 인민법원 일원제를 계속적으로 견지하여야 하고 인민법원 내에서 재판권과 집행권 업무 권한을 명확히 분리시키는 개혁을 통하여 ‘执行难(집행의 어려움)’과 ‘执行乱(집행의 무질서)’의 문제를 효과적으로 해결할 수 있다고 판단한다. 논문은 이러한 관점에서 중국 민사강제집행법의 발전과정, 최신 입법 동향을 검토하고 그 발전 방향을 제시하는 것으로 하였다.

다국어 초록 (Multilingual Abstract)

China has a long history of native legal system，adopting the form of a combination of various laws，based on the simple legal consciousness of ‘repaying debts is a matter of course’, attaching great importance to the realization of the interests of creditors, and leaving behind a rich cultural heritage of civil enforcement law. Science the early 20th century, China began to accept the influence of foreign laws and initiated the process of modernizing its civil enforcement law. This process is also the disintegration of the native legal system and transplantation and localization of foreign laws. In the early period of the late Qing dynasty and early Republic，the civil enforcement law imitated the Austrian legislation，based on the non-litigation case theory as the legal basis, adopted the separation of the civil procedure law and the civil enforcement law, and implemented civil enforcement separately. As a result, China was the first country in Northeast Asia to formulate an independent civil enforcement law. The People’s Republic of China combined the legal experience of the revolutionary base area with the reference to the Soviet legal system, and based on the legal theory that trial is the prerequisite for enforcement proceeding, the enforcement procedure is the continuation and completion of trial, it adopted a system that combines trial procedure and enforcement procedure, and unified the two civil procedures in the civil procedure Law. Thus, China’s civil enforcement law has experienced an evolutionary process in terms of the structure, from a combination of various laws to an independent law, and then from the independent law to a unified regulation of civil procedure and civil enforcement.
In order to implement the Party’s arrangement of ‘effectively resolving difficulty in enforcement’， the 13th National People’s Congress(NPC) Standing Committee Legislative Plan listed the formulation of civil enforcement law as the category II projects of the plan, and appointed the Supreme People’s Court as the authority to consider and lead the drafting of the law. Science the founding of the People’s Republic of China, the people’s courts have implemented a unified system of enforcement authority. The Supreme People’s Court organized specialized personnel，combined with the long-standing experience in handing civil enforcement cases and implementing judicial interpretations. After many discussions, investigation, research, and several revisions, the Draft Civil Enforcement law (hereinafter the ‘Draft’) was finally submitted to a session of the NPC Sanding Committee for deliberation on June21,2022. However, due to the major different opinion on the separation model of adjudicative power and enforcement power during the deliberation process, the decision on whether the people’s courts or other state authorities should act as enforcement authority to exercise civil enforcement power on behalf of the state needs to be made by the Party Central Committee. Therefore, it is not appropriate to make prior provisions in the civil enforcement Law. The Constitution and Law Committee of National People’s Congress submitted a report on terminate deliberations under the Article 45 of Legislation Law of the People’s Republic of China. The report was deliberated and adopted at the Chairman’s meeting of the NPC Standing Committee. Accordingly, the Draft has been shelved indefinitely. It means that the legislative work of the first civil enforcement law of China is now also in a paused state.
The factors to ‘difficulty in enforcement’ are related to ‘chaos of implementation’ and other issues existing in the people’s courts in the practice of civil enforcement implementation. There is a view that only by thoroughly reforming the current unitary system of the people’s court as the enforcement authority, that is separating the enforcement authority from the trial authority can solve this di...