Scholar Interprets the Fourth Plenary Session of the 18th CPC Central Committee: A Brief Discussion on the Reform of Separating Trial and Enforcement
[1] [Tip] To address the "difficulty in enforcement" issue, the Fourth Plenary Session communiqué proposed optimizing the allocation of judicial powers and piloting reforms to separate adjudication and enforcement powers. Scholars interviewed believe that enforcement powers could be removed from courts.
[2] Separation of adjudication and enforcement originally means separating adjudication and enforcement within the court, with judges handling adjudication and enforcement officers handling enforcement. The current separation of adjudication and enforcement powers is clearly stated in relevant laws. Article 40 of the Organic Law of the People's Courts stipulates that local people's courts at all levels shall have enforcement officers to handle enforcement matters of civil case judgments and rulings, as well as enforcement matters related to property parts in criminal case judgments and rulings. Article 228 of the Civil Procedure Law stipulates that enforcement work shall be carried out by enforcement officers. People's courts may establish enforcement agencies as needed.
[3] In recent years, judicial enforcement work has been heavily criticized, with "difficulty in enforcement" becoming a chronic problem plaguing courts. The Supreme People's Court once summarized five difficulties in judicial enforcement: "difficulty in locating the person subject to enforcement, difficulty in finding enforcement property, difficulty in seeking assistance in enforcement, difficulty in moving property subject to enforcement, and difficulty in dealing with special subjects." Although there is a separation of powers in case filing, adjudication, and enforcement within courts, judicial injustice still occurs. Due to the significant decision-making and discretionary power of courts during enforcement, corruption among judges in court enforcement divisions is common.
[4] Enforcement is an administrative task, mostly handled by grassroots courts. Insiders reveal that courts also complain about and are dissatisfied with enforcement difficulties, believing that enforcement work negatively impacts court authority and judicial credibility. "The Supreme People's Court once proposed removing enforcement powers, but it ultimately fizzled out." Several scholars have stated: "The separation of adjudication and enforcement powers may involve removing enforcement powers from courts and assigning them to other departments, or establishing a separate specialized enforcement agency."
[5] Chen Hangping, Associate Professor at the University of International Business and Economics Law School, believes that the separation of adjudication and enforcement may require separate legislation for the "Enforcement Law": "Because many provisions on enforcement in the current Civil Procedure Law are relatively simple and incomplete in many aspects. The introduction of the Enforcement Law is also highly anticipated."
[6] However, whether the separation of adjudication and enforcement can "cure" the "difficulty in enforcement" remains to be observed, according to several scholars. "Because it may trigger other litigation issues during enforcement." Zhang Weiping, a civil procedure law scholar and professor at Tsinghua University Law School, believes that the separation of adjudication and enforcement must be handled cautiously. If the enforcement agency has not been removed, when the person subject to enforcement files a lawsuit due to objections, they can directly file a lawsuit with the court; after removal, how the court and the subsequent enforcement agency communicate is worth considering.
Zhang Weiping believes that the cost of reform must be considered. If a true separation is carried out, the court's enforcement personnel and assets would need significant adjustments. The court is a beneficiary, and it remains unclear whether current enforcement staff are willing to leave the court. "The pilot program is not a major future trend, nor is it a fundamental solution to the difficulty of enforcement." Zhang Weiping argues that the root cause of the "enforcement difficulty" is that relevant parties have not truly respected the law, leading to a lack of authority in its implementation.
(Caixin Net)
