“Judiciary is the last line of defense to maintain social fairness and justice”, and litigation is the dynamic carrier and core content of justice.
In theory, litigation is usually divided into two stages: one is the trial stage to determine rights and obligations, and the second is the execution stage to realize rights and obligations. However, no matter what country it is, it is always the trial stage that steals the limelight, and the executive always plays the role of “adjutant” or “attendant”. But once upon a time, “difficulty in enforcement” became the focus of judicial reform, the helplessness of creditors, and the failure of social credit, so it became a major concern of the central government.
On July 7, 1999, that is, 23 years ago today, the Central Committee issued “Document No. 11”, that is, the notice of the Central Committee of the Communist Party of China on forwarding the “Report of the Party Group of the Supreme People’s Court of the Communist Party of China on Solving the Problem of “Difficult Enforcement” in the People’s Courts. ” (Zhongfa [1999] No. 11), which sounded the horn to safeguard judicial authority and overcome the dilemma of enforcement. It is also since then that the work of compulsory enforcement of legislation has been placed on the important agenda of the national legislature and the Supreme People’s Court.
On June 21, 2022, the Standing Committee of the National People’s Congress reviewed the draft enforcement law for the first time and solicited public comments. This action is a sublimation of the achievement of the phased goal of “basically resolving enforcement difficulties”, and is a long-term mechanism for implementing the central government’s requirement to “effectively resolve enforcement difficulties”. At such an important moment, it is especially necessary to clarify some major theoretical issues in the enforcement procedure and provide theoretical support for high-quality legislation.
The firmness of the judiciary as the defense line of fairness and justice depends not only on the fairness of the trial activities, but also on the effectiveness of the enforcement work. If the former can be compared to the scheme design and framework construction of the line of defense of fairness and justice, the latter can be compared to the “construction” of this line of defense. It can not only achieve the value of all judicial activities in the front-end, make it icing on the cake and end it perfectly, but also destroy the effectiveness of all the efforts of the front-end and destroy the cause of the rule of law. Anyone who has participated in the front-line implementation work knows that this “construction” process is not simple, and is also tested by profound legal principles, compound values, multiple demands, delicate procedures and harsh reality. Perhaps it is precisely because of these problems that the draft legislation took more than 20 years to come out, and the widely criticized implementation chaos has never been cured.
The author participated in the drafting of the “Central Document No. 11” 23 years ago, and also came into contact with the drafting of the compulsory enforcement law due to work reasons. directly related to the value orientation of the law. In this regard, I will briefly talk about some of my superficial thoughts on the enforcement of legislation.
1. The first pursuit: “realizing” rights rather than judging rights
Enforcement law must take the realization of rights and obligations in legal documents as the first pursuit. Any system always has one core function and multiple concurrent functions. As far as the stage of enforcement law in the rule of law process is concerned, the realization of rights and obligations determined by legal documents should be its core function and primary pursuit.
Enforcement activities are carried out on the basis of a certain civil effective legal document. It neither participates in the front-end “confirmation” process of rights and obligations, nor does it repeatedly review and verify the “confirmation” that has been completed. The only thing it needs to do is put the front-end “confirmation” into action.
In this respect, civil enforcement is identical in nature to criminal enforcement. When a penalty enforcement agency is executing a fixed-term imprisonment, it can only take the defendant, type of punishment, term of sentence, etc., as stated in the legal document, and it does not need to consider whether the type of punishment is appropriate, whether the term of sentence is reasonable, and personal freedom may not be deprived for no reason, etc. question. When a civil enforcement agency executes a monetary debt, the first thing it has to accomplish is to hand over the debtor’s property to the creditor and realize the claim determined by the legal document, regardless of whether the original judgment is correct.
If there is an obvious unreasonable situation in the execution process, there are other ways out of the program, and the executor does not need to play other roles. In France, some parties even have to fulfill the requirements of the effective judgment before filing a re-appeal to the Supreme Court. All this shows that the primary pursuit of enforcement is to “realize” rights rather than judge rights, and no other function can surpass it.
However, the complexity of legal relations and the variability of social reality require that enforcement procedures cannot simply be used as a “copier” of judicial results. Some people may think that the construction process is carried out according to the drawings, just like the second child of the pharmacy, who dispenses medicine according to the prescription, which is inseparable from ten, which is not enough. However, the “construction team” also has its own construction regulations and standards. It is a huge and complicated project to turn the design drawings into high-rise buildings. Although the principle of “execution first, relief later” is adopted, the subsidiary measures and adaptations taken to realize rights and obligations are the meaning of execution procedures. For example, in the execution of a sentence, there may be cases where the defendant is seriously ill, pregnant or breastfeeding, or unable to take care of himself, and so applies for execution outside prison. In civil execution, the necessary living expenses or residence of the person subject to execution cannot be ignored. Fully and thoroughly implement it.
2. Putting executive power in the institutional cage
Enforcement law is a treasure book of restricting enforcement power and restricting enforcement behavior. Like the administrative power and judicial adjudication power, the enforcement power belongs to the public power of the state, and there are also risks such as illegal exercise of power and abuse of power. Therefore, the restriction on the right of enforcement and the act of execution must accompany the whole process of the exercise of the power.
Enforcement law is procedural law, and every provision of procedural law can be expressed in the conduct of the executive and in the conduct directly under the supervision of the executive. Therefore, the enforcement law can also be called the “code of conduct law” of the enforcement court, the enforcement agency, and the enforcement personnel, although its ultimate purpose is to better realize the rights and obligations of the parties.
Just as administrative organs and penalty enforcement organs often encounter illegal administration and illegal enforcement, the situation of civil enforcement subjects’ enforcement according to law is also not optimistic. All walks of life and the court system have their own evaluations on the issue of “chaotic enforcement”, which can be deduced from the “Ten Strict Prohibitions” of People’s Courts to Standardize Enforcement Behaviors issued by the Supreme People’s Court in April 2017. In the process of handling enforcement cases, “cold push”, passive enforcement, delayed enforcement, and selective enforcement; it is strictly forbidden to seal up, seize, freeze property, and illegally enforce the property of persons outside the case; Repayment of debts; it is strictly forbidden to conceal, withhold, embezzle the money for execution, and delay the payment of money for execution; it is strictly forbidden to meet the parties, agents, invite trustees, or eat, live, or travel with them in violation of regulations during the process of handling execution cases; ”, acting as a litigation broker, interfering in cases of violations, etc. These shocking questions and the harsh wording of the “Ten Prohibitions” reflect the severity of the current enforcement chaos from another perspective.
It is generally believed that enforcement is a “prescribed medicine” type of action. As long as the program is legal, the chance of “execution disorder” is very small. But this is not the case. Therefore, the procedural design of the enforcement law should also be fair, rigorous, and powerful, and block all loopholes in illegal procedures.
3. Scientific theories are the basic guarantee for the success of legislation
Enforcement law should reflect and maintain legal dignity and judicial authority, and scientific theoretical guidance can also help.
The overall tone of the “Central Document No. 11” was to combat local and sectoral protectionism and maintain the authority and dignity of the legal system. The central government requires that “the judgments made by the people’s courts in accordance with the law reflect the will of the country and have the authority of the country’s laws. The parties should perform them automatically and must accept the compulsory execution of the people’s courts.” But even today, my country’s legal authority and judicial credibility It is still not ideal on the whole, and the reasons are very complicated, but the weak and tolerant attitude of the existing system to refusal to perform effective legal documents, as well as the low-cost, no-cost, or even profit-making situation of refusing to perform legal obligations, exacerbates the situation. It has made “execution difficult” and provided soil for “execution chaos”.
A scientific enforcement theory is also crucial to solving the enforcement dilemma and scientific legislation, while a wrong theory will condone “difficulty enforcement” and damage the authority of the rule of law to a certain extent.
There is a theoretical point of view that the performance of specific obligations determined by legal documents is equivalent to the performance of “normative obligations” arising from laws or contracts, without highlighting its “implementation obligations” attribute, thus affecting the severity of punishing those who do not perform obligations.
For example, when a person who unknowingly fulfills the legal obligation to support his parents is sentenced to pay alimony of 3,000 yuan per month, there is a fundamental difference between the pre-sentence and post-sentence obligations. The “normative obligations” before the judgment need to be decided and confirmed by the specific competent authority in accordance with the law, and the parties only bear the compensatory consequences (such as bearing the litigation costs). After the judgment, an “enforcement obligation” is formed on the parties. If it is not performed, it will directly lead to punitive consequences (rather than just bear the litigation costs similar to the litigation stage), such as coercive measures (such as judicial detention), contempt of court (the judge can directly sentence ), refusal to execute a crime (in accordance with criminal procedure), etc.
The “non-performance” of these two stages seems to be the same, but the nature of the behavior has changed, and the “forced degree” of performance is also fundamentally different. The former is autonomous and warning, while the latter is mandatory, direct and punitive. The state can require citizens to “consciously” abide by abstract laws, but it cannot be said that citizens should “consciously” perform effective judgments. Enforcement law should pay attention to this difference in the design of other provisions, otherwise judicial authority will be lost in half before enforcement begins.
4. Balance the three functions of the executive program
Enforcement law requires a balanced pursuit of other values while fulfilling its core function. From the above analysis, it can be seen that there are three most important functions of enforcement law: first, to realize rights and obligations; second, to restrain executive power; and third, to maintain the authority of the rule of law.
In the practice of enforcement, the realization of rights and obligations is the core function. Although the realization of other functions has its independent value to a certain extent, it mainly serves the realization of this core function. Therefore, while these functions are in play, there will inevitably be overlaps, conflicts and competition with each other, which brings some difficulties to the drafting and subsequent application of the relevant provisions of the enforcement law.
Although there are primary and secondary functions of enforcement law, one function cannot completely cover or replace another. This requires that the “mainstream model” or “greatest common factor” should be adopted as much as possible when designing relevant provisions in the process of scientific legislation. This mainstream model can maximize the positive role of other functions on the premise of keeping the general direction correct, and is consistent with the overall goal of promoting the construction of a country under the rule of law and enhancing judicial credibility. With social and economic development and changes in the rule of law environment, the mainstream model chosen today may be appropriately adjusted as the situation changes, and the paths that some other countries have gone through can also be used as our reference.
Whether it is regulatoryism, “night watchman”ism, humanistic spirit, or a harmonious society, all may “lead the way” at a certain stage. However, in terms of multiple functions in the same period, it is necessary to adhere to the mainstream, distinguish priorities, and make balanced efforts according to specific circumstances.
Before Zhou Qiang, President of the Supreme People’s Court, announced in March 2019 that the phased goal of “basically resolving enforcement difficulties” would be achieved as scheduled, the enforcement actions of the Supreme People’s Court were directed at the person being enforced evading enforcement, resisting enforcement, and externally interfering with enforcement. The people’s courts have negative enforcement, selective enforcement, arbitrary enforcement, lax standards, poor application of supporting mechanisms, low satisfaction with enforcement work, low enforcement authority and judicial credibility. After achieving this phased goal, Zhou Qiang believes that there are still many problems in the implementation work. For example, the people’s sense of achievement in the implementation work needs to be further improved, and some parties are still dissatisfied with the implementation effect and the standardization level of implementation. The imperfect social integrity system still imposes great constraints on enforcement work, the joint disciplinary system needs to be further improved, and information sharing among units needs to be strengthened.
We believe that the formulation of a strong and independent code of civil enforcement will surely consolidate the achievements of the reform of the enforcement system, help solve the dilemma of enforcement, and improve the efficiency of enforcement.
The most worrying “tofu dregs” project in the construction field. As the builder of the last line of defense of fairness and justice, the “construction team”, the enforcement procedure carries the task of fulfilling the overall goal pursued by the whole process of the rule of law. Although there are still low awareness, incomplete process, insufficient ability, unfamiliar craftsmanship, shortage of materials and even natural and man-made disasters in the construction process, we believe that through the “twenty years of sharpening a sword” enforcement code and careful With the joint efforts of legislators, judiciaries, experts and scholars, and all other builders of the rule of law, the dam of fairness and justice has been designed to become the full implementer of the rights of the parties and the strict supervision of the enforcement power. defenders and strong defenders of legal authority.
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