On theprotection of human rights in the civil execution procedure
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D925.18

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    Abstract:

    Although the civil execution procedure takes the realization of the obligee’s right as the main goal, the protection of the basic human rights of the person subjected to execution during the execution process should also be paid attention to. The two are the proper meanings of the modern human rights concept and jointly constitute the protection of human rights in the civil execution procedure. But the main mission of civil execution procedure determines the extent of the obligee’s realization of right and obligor’s basic human rights protection is always in a vulnerable "biased" dynamic balance state. With the enhancement in the execution of the obligee’s realization of right, it will gradually increase the tension between the two, and the fragile balance would be broken at any time. The Civil Execution Law (draft) is a summary of the experience and wisdom in civil execution judicial practice of China. One of the important measures for the dimensions of its legislative scientificity is the effect of realizing obligee’s rights, but this should not be taken to extremes. The protection of the human rights of persons subjected to execution should also be taken into account. Therefore, the Civil Execution Law (draft) must respond to the tense game and conflict between the realization of the obligee’s rights of the applicant and the protection of the basic human rights of persons subjected to execution in legislation and judicial practice. The right to equal protection principle, principle of proportionality and principle of procedural relief should play a full role of basic values in system construction. According to the protection of the right to survival, peaceful life, integrity of personality and personal dignity of the person subjected to execution, it can "draw" the limits of the effect of the execution power on the person subjected to execution. Based on this, the boundary of human rights protection of the person subjected to execution is clarified. Through balancing the value between the realization of the obligee’s rights and the protection of the basic human rights of the person subjected to execution, the Law of Civil Enforcement (draft) "inlays" the "kernel" of human right protection, and contributes to the construction of China’s human rights discourse system.

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李燕,高星阁.论民事执行程序中的人权保障[J].重庆大学学报社会科学版,2022,28(6):258~271

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  • Received:
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  • Online: February 03,2023
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