Executive mechanism of thedamaged specific objects
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D926.2

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    Abstract:

    The execution of specific objects is based on the principle of original object execution, but the damage of specific objects is inevitable in the process of execution. In terms of legislation, China paid attention to it as early as 1998 in the Provisions of the Supreme People’s Court on Several Issues Concerning Execution Work of People’s Courts (Trial). Since 1998, the mode of execution of damaged specific objects in China has evolved from "compensation at a discount or alternative execution" to "negotiation or separate action", and then to "negotiation or retrial or separate action". In terms of justice, the execution cases related to damaged specific objects also show a rising trend year by year. Although the legal exploration of China has gone through more than 20 years in the face of the execution of damaged specific objects, there are still problems related to execution of damaged specific objects. At present, there are still different demands of the parties, the enforcement agencies are in a practical dilemma, and there are also theoretical embarrassments of the coexistence and poor connection of multiple theories of the subject matter of enforcement, the subject matter of litigation, and the standard of res judicata. Although the newly issued Opinions of the Supreme People’s Court on the Coordinated Operation of the People’s Court’s Filing, Trial and Execution Work in 2018 introduced the time node of "the end of the last court debate", the new relief plan proposed by the Supreme People’s Court—"retrial or separate action" faces challenges such as lack of time setting, lack of consideration of specific damage elements, and unreasonable relief system. From the perspective of the causes of the problem, the problems of execution of damaged specific objects are due to the lack of continuity between substantive law and procedural law and the lack of deep understanding of the content framework of procedural law. In this regard, in combination with the implementation response mechanism framework of damaged specific objects at home and abroad, if we can strengthen the execution investigation, accurately grasp the specific object status, accurately realize the procedure diversion, improve the implementation method, and implant the spare execution and spare litigation, we can moderately alleviate or dredge the existing problems of the inability to execute damaged specific objects. However, the reality is that the judicial and executive relief judges have different theoretical positions concerning the execution of specific objects, and the legitimacy of forced connection in a unified model is even more insufficient, so this solution should be abandoned or improved. Under the background of multiple theories and multiple links, we should make use of the consistency and logical self-consistency of judges’ individual views and positions to reasonably allocate the right to initiate the review of execution. Through the implementation of the separation of trial and execution, the executive judge should be specialized in handling execution matters, and no longer intervene in the trial and relief judgment, so that the trial judge on which the execution is based can directly connect with the relief judge when the execution of specific objects is not smooth, so as to unify the theoretical positions of the trial judge and relief judge. It is the fundamental solution to the execution problem of specific object damage, which achieves a strong connection between trial and execution, and achieves a consistent effect in case handling.

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马登科,黄学欣.特定物毁损执行之应对机制[J].重庆大学学报社会科学版,2022,28(6):243~257

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  • Received:
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  • Online: February 03,2023
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