中國 民事執行節次 槪觀-개정 민사소송법을 중심으로- = A Study on the Chinese Civil Enforcement Law

다국어 초록 (Multilingual Abstract)

Since China enacted the Law of Civil Procedure in 1982 to support their Reform and Open Policy, there has been harsh and endless complaints argueing its inefficiency, especially surrounding Judgment Enforcement Procedure. The Judgment Debtors try to elude their obligations employing various means and they even intimidate the Debt Collectors from enforcing the Judgments making the Judgments futile wastepapers. Such phenomenon is called “enforcement embarrassment”. The cause of this hardship is multifarious. Scholars point out the undue regional egoism of the officers, lack of legal consciousness of the people, insufficiency of the penalties, enforcement-neglecting trends of the courts and the insufficient capacity to cover the enforcement procedures.
Over two decades, chinese scholars and lawyers consistently pressed the Government to make a overall reform of the Enforcement System to mitigate this embarrassing situation. In 2007, the Standing Committee of the National people's Congress of People's Republic of China passed the amendment bill of Law of Civil Procedure to meet the current needs of the society. The major points of the revision are as follows,
(1) Court can ban the neglecting Judgment Debtor from leaving the country and also can notice his negligences to the information related branches.
(2) Courts can order the Judgment Debtor to declare his financial status for one year before he received the enforcement notice, and can sentence fines or detention if he refuse to follow the order or make a false declaration.
(3) High People's Courts and the Supreme Court of the People's Republic of China also, if in need, can establish the enforcement divisions.
(4) The courts which cover the site of property, along with the first instance court of the case, can perform the enforcement procedures.
(5) Prolonged the period of prescription for enforcement from one year(six months if the parties are corporations) to two years.
(6) To prevent the undue procrastination of enforcement procedures due to the regional egoism, new law permits petitions to the just above the original requested courts for enforcement of the delayed case when it is procrastinated over 6 months.

다국어 초록 (Multilingual Abstract)

Since China enacted the Law of Civil Procedure in 1982 to support their Reform and Open Policy, there has been harsh and endless complaints argueing its inefficiency, especially surrounding Judgment Enforcement Procedure. The Judgment Debtors try to elude their obligations employing various means and they even intimidate the Debt Collectors from enforcing the Judgments making the Judgments futile wastepapers. Such phenomenon is called “enforcement embarrassment”. The cause of this hardship is multifarious. Scholars point out the undue regional egoism of the officers, lack of legal consciousness of the people, insufficiency of the penalties, enforcement-neglecting trends of the courts and the insufficient capacity to cover the enforcement procedures.
Over two decades, chinese scholars and lawyers consistently pressed the Government to make a overall reform of the Enforcement System to mitigate this embarrassing situation. In 2007, the Standing Committee of the National people's Congress of People's Republic of China passed the amendment bill of Law of Civil Procedure to meet the current needs of the society. The major points of the revision are as follows,
(1) Court can ban the neglecting Judgment Debtor from leaving the country and also can notice his negligences to the information related branches.
(2) Courts can order the Judgment Debtor to declare his financial status for one year before he received the enforcement notice, and can sentence fines or detention if he refuse to follow the order or make a false declaration.
(3) High People's Courts and the Supreme Court of the People's Republic of China also, if in need, can establish the enforcement divisions.
(4) The courts which cover the site of property, along with the first instance court of the case, can perform the enforcement procedures.
(5) Prolonged the period of prescription for enforcement from one year(six months if the parties are corporations) to two years.
(6) To prevent the undue procrastination of enforcement procedures due to the regional egoism, new law permits petitions to the just above the original requested courts for enforcement of the delayed case when it is procrastinated over 6 months.

참고문헌 (Reference)

• 1 張衛平, "轉換的邏輯" 法律出版社 2004
• 2 陳剛, "移植與創新" 中國法制出版社 2005
• 3 陳剛, "民事訴訟法濟的現代化" 中國檢察出版社 2003
• 4 江偉, "民事訴訟法專論" 中國人民大學出版社 2005
• 5 梁書文, "民事訴訟法及配套規定新釋新解" 人民法院出版社 2000
• 6 江偉, "民事訴訟法" 中國人民大學出版社 2000
• 7 陳桂, "民事訴訟法" 中國人民大學出版社 2000
• 8 廖中洪, "民事訴訟改革" 中國檢察出版社 2006
• 9 楊榮馨, "民事訴訟原理" 法律出版社 2003
• 10 潘劍鋒, "民事訴訟原理" 北京大學出版社 2001
• 11 葉自强, "民事訴訟制度的改革" 法律出版社 2001
• 12 陳剛, "比較民事訴訟法" 中國人民大學出版社 2001
• 13 唐德華, "新民事訴訟法" 人民法院出版社 2008
• 14 唐德華, "新民事訴訟法" 人民法院出版社 2008
• 15 柴發邦, "中國民事訴訟法學" 北京大學出版社 1994
• 16 柴發邦, "中國民事訴訟法學" 中國人民公安大學出版社 1993
• 17 王懷安, "中國民事訴訟法" 人民法院出版社 1988
• 18 "<關于民事, 行政訴訟中司法賠償若干問題的解釋>"
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