Improve the debtor property declaration system - crack, "" Difficult to Enforce Export

Keywords: implementation difficulties / financial disclosure / hearing / integrity

Abstract: Although China to solve the "difficulty in enforcement" issue a lot of tries, but has not yet been fully resolved this issue. This property from the debtor reporting system that perspective, by analyzing the debtor in property declaration system is now China's situation and reason, and gradually explore some improved financial disclosure system for the debtor and advice to find break "the implementation of difficult" issue of export.



"Implementation difficulties" is the confusion of Civil legal theory and judicial practice, a major problem, modify the end of 2007 and in April 1, 2008 into effect of the <<PRC Civil Procedure Law "" (hereinafter referred to as << Civil Procedure Law ">, we can clearly see that the Law makers to address the" implementation difficulties "in their efforts. Admittedly, these efforts make up the <<Civil Procedure Law (for Trial Implementation>> of the many loopholes to solve the "difficulty in enforcement" issue has become more effective legal basis, but this problem has not been fully resolved. such as this property will be discussed in the debtor reporting system problems, is one of the most typical example. to build and improve the property declaration system is executed break "implementation difficulties" of the importance of exports.

First, the concept of debtor assets declaration system and its significance
According to the latest revised <<Civil Law "> Section 217, debtor assets declaration system is the enforcement notice be enforced fails to fulfill the obligations of the legal document, it shall report to the court and receive the current day of the enforcement notice property from a year ago, otherwise fines will be subject to detention or punishment of a system. from the Articles can be seen: 1. If the person reporting the Condition of property is the person subjected to execution fails to fulfill an enforcement notice .2 obligations established by legal instruments. executed areas of financial disclosure is the current time and date of receipt of the enforcement notice a year ago, .3. executed the scope of the property should be executed to declare all property conditions, including All movable and immovable property, while paper argues that the property should also include the static and dynamic state property status: static property status is the debtor's property at some point the balance, financial statements and movable and immovable property of all the circumstances, the dynamic status of the property is the debtor received notification of the implementation of the property within one year from the date of increase and decrease of .4. If the person fails to perform financial disclosure obligations, will result in sanctions such as detention or a fine.

Identification of debtor's property is available to enforce the implementation of the key, but also the implementation of one of the difficulties. In recent years, the issue has plagued the implementation of the Court of the outstanding problems. Property status of the implementation of the court to grasp the principal debtor There are three ways: the Court investigation, reporting and executed initiative to declare the applicant. no one is more aware of their own than the debtor's property status, so if the debtor can take the initiative to declare their property status, it will be the implementation of the Court property status of the executed master the most effective way. Therefore, this Article that the debtor to establish and improve the significance of the property declaration system is:
1. On the court, the lower the cost of justice, to reduce the property status of the executed query waste of manpower, material and financial resources, can improve the efficiency, in line with the implementation of economy, the same time, by forcing the debtor to declare the property and clearly does not fulfill this obligation will result in legal consequences, potentially exert psychological pressure will be enforced, so that debtor can not be ignored, the objective to maintain the court's authority.

2. On the debtor, the assets declaration system is not entirely in his head on the buckle of the "magic", it should be divided into two look at this system: on the one hand, the debtor refused to report or false report , the court may based on the circumstances the person or his legal representative, the unit responsible person or persons directly responsible shall be fined, detained, which is the negative side, on the other hand, if the person has practical difficulties temporarily unable to fulfill the objective effect on the instrument does the obligations established by the initiative to declare property status is unable to fulfill its obligations under the evidence, which may lead to <<Civil Law "> section 232 or section 233 of the application, suspension or termination of the case implementation.

Second, the debtor's property declaration system for reasons of status and
"China's 'difficulty in enforcement' problem is because they can not collect due to the debtor's financial information. [1] In" <Civil Procedure Law "> modified before the High Court have developed over a number of criteria to establish the debtor to declare property state obligations, [2] In fact, most of the world the rule of law provides for debtor countries have the obligation to declare his assets, [3] The <<Civil Law "> revision is borrowed from the best practices of countries around the world and around the High Court to force a debtor to declare the property to formalize the practice.

However, after the debtor and property declaration system is not well implemented to achieve the desired results, as Jiangsu Province, Yangzhou City Intermediate People's Vice-President Huang Chenggang in its <<On the Construction of debtor property declaration system>> a text said, "I charge of the implementation of the Primary Court, the enactment of these provisions from the Court to declare their property by debtor (in pArticular to declare the property available for the implementation of the circumstances of the case to Zhijie almost does not exist" [4]. nearly few years, because no executed and did not have the status of their property resulting in a large number of cases there can not be implemented, resulting in "the implementation of difficult" issues become more prominent, and media attention to this issue objectively and gradually enlarged to become the community hot spots, to a certain extent affected the people's trust in the courts, undermine the authority of the courts.

"Difficult to reason about implementation, people tend to be stressed that local protectionism, depArtmental protectionism and administrative intervention. But in fact do everything possible to respect some of the executed transfer of property to evade the implementation of the Executive to the people's court to bring the resistance and the difficulty of the number of cases as a whole from the point of view, may be far greater than the external factors interfere. "[5] judicial practice, the debtor refused to declare their property status, there are three main forms: first, notice of declaration ignored, Even if you receive notice of the implementation of the court to declare the property also refuses to state the property. Second, hide declaration, only small or declared value of the property are far less than the implementation of the subject property the situation is difficult or even some debt claims, of the property is not available for the implementation for reporting. Third, false reporting, false statements by fictional illusion of no property available for execution.

The reasons are the following: 1. A long time because the construction of social credit is seriously lagging behind, many debtor lack of good faith, after the hidden debt, transfer of property, malicious avoid the implementation of .2. If the person can easily escape monitoring the transfer of property, corporate property status opaque, the phenomenon of a large number of false accounts exist, financial data, a serious distortion of .3. Some assist in the execution of legal consciousness, for their own interests and executed malicious collusion need to help the executed transfer of property [6]. 4. If the person fails to perform in our reporting obligations under the disciplinary mechanisms of property is weak, If the person does not declare his assets to fulfill faithfully the obligations of state and will not incur adverse consequences. based on China's national conditions, in practice most of the issue declare that the property, has not been reported, based on the implementation of the practical considerations, the court adopted the executed so rarely detained fines. This makes the system useless property declaration executed. [7] 5. enforcement mechanism defect If the person does not fulfill the property leading from the obligation to declare a profit. In the actual implementation process, law enforcement officers to closing, always do the job the applicant is recommended to give up pArt of their claims in order to ensure sufficient capacity to have executed determined to fulfill the obligations of effective legal instruments. It is not on the table though is a way, but he is a good effect the implementation of the method. Although this case closed, and closed as a way of reconciliation, however, the idea behind it appears to the satisfaction of all passing such a signal that the decision does not take the initiative to carry into effect, transformed into a debtor by the defendant, can reduce the debt payment obligations. In other words, take the initiative to fulfill its obligations of the defendant, not only need to pay the debt in full, and no benefits, while the deadbeat defendant is not also once became a debtor, not only has little to lose, the opposite behavior can also get from this deadbeat gains. This result, from another perspective, is to encourage hundreds of thousands of the defendant defaults, while waiting for a debtor, waiting for the applicant to give up some rights. [8]
Third, improve the debtor's proposed property declaration system
Enforcement procedures is to achieve the rights of creditors last barrier, is the most important civil procedure one of the procedures. The court if not properly and fully perform to honor (such as wages of migrant workers, distribution of bankruptcy claims disputes, it is highly likely to stimulate social conflict. and if the court can not identify the debtor's property status, the execution will be available for the implementation of the property because of missing and difficult to proceed smoothly and achieve the rights of creditors have to pass the last one was broken. Therefore, the paper argues that despite the 2007 revised <<Civil Law "> from the debtor established a legal sense the property declaration system, but improve on this basis, the system is still imminent. This paper recommends the following:
(If the person reporting the development of a property system as soon as the relevant provisions of rules is to improve the reporting system, the premise of debtor property
Imperfect legislation is a system to truly implement the primary reason not only improve the relevant laws from the legislative rules and regulations, in order better to ask people to follow, but also to a greater extent to prevent the phenomenon of loopholes.

First, declare his assets should be clearly the specific content of the executed.

This paper argues that the debtor is a natural person to be declared includes: family status, marital status and marital status of common property, work units, in the post, wages and real income, income sources, housing conditions and living conditions, deposits and deposits in which case Name of financial institutions (including financial products, stocks, funds, foreign credit and debt, family property (more than 1,000 items from the list, go out to work abroad, travel or other nature for a long time out situation.

If the person is a legal person should declare the contents: the actual corporate investors, registered capital is actually in place, all of the company bank account on the account number and account balances, anchored to the number of cars in the company name and its existing condition, anchored in the company property under the name of the name, number, location, value, photos, the number of fixed assets and the movements of intangible assets situation, the company long-term investment position, the company claims the debt situation of the spot and forward, the company last month, last quarter, the first half of the previous year's balance sheet, income statement, cash flow statement. corporate materials in the above declaration should be accompanied by relevant documents. If you think your corporate material filed is a commercial secret, but also the people of a written application Court for its confidentiality.

Links to Free Download Center http://www.hi138.com the second paper, a clear declaration of the property executed period.

Based on 2007 revised <<Civil Law "> Section 217, executed an enforcement notice fails to fulfill the obligations of the legal document, shall report one year before he received the enforcement notice the property of the situation." Current "is If the person received the enforcement notice means the date that the debtor shall declare the date of receipt of the enforcement notice and the current status of the property the year before the static and dynamic property status. This paper argues that in addition, also executed should be declared in the course of time the property changes, to prevent the debtor to declare the property after the initial transfer of property, concealment of property. executed during the transfer of property in this behavior will be investigated executed an important basis for liability.

Third, strengthen the debtor does not fulfill the obligation to declare assets, severe cases can be held criminally responsible.

If the person refused to declare the practice of justice, false statements, concealing property status report, the most important reason is that existing laws do not punish those who reported smaller and the implementation of the court in the actual operation of the detention, the use of fines and other punitive measures less, therefore not of the executed deterrent. Therefore, this article that should strengthen the debtor does not fulfill the obligation to declare the property, refusing to return, false statements and concealment of reporting shall be punished in strict accordance with the law, serious also based on <<Civil Law "> 102, Article 104 be held criminally responsible, in order to" check drawn, fine be, strictly enforce the law. "
Fourth, the development of a unified financial disclosure notice executed formatted text, the notice clearly fails to perform the obligation will result in legal consequences of doing the work of Interpretation.

Supreme Court should develop a unified financial disclosure notice executed formatted text, and should be made clear in the notice of financial disclosure obligations of non-compliance will result in legal consequences. Executive Judge shall issue an enforcement notice in the debtor fails to perform legal instruments certain obligations, assets declaration served notice to the debtor, the judge shall also perform well executed work of Interpretation.

(B implementation of the hearing process, confrontation is to improve the parties is executed
Pedestrian critical property declaration system is the key to solve the problem of difficult enforcement cases in the implementation, application executor is most concerned about whether the implementation of debt to cash, and the other law also clearly defines the property status of the applicant to provide debtor's obligations Therefore, the applicant will be trying to identify the debtor's property status. This paper argues that verify false declaration executed to conceal the court to declare the property status of coercive measures in addition to be identified, another of the most effective method is to hold a hearing procedure by both parties to confront at the hearing. If the person reporting the property, the judge should first review the implementation of the declared property of the executed initial review of the situation do first, and then summon the parties to the hearing, the applicant return the executed questioned the status of a property and provide relevant evidence to prove, and the implementation of the judge shall order the debtor to explain and provide evidence to prove it. If the person can not prove, and the implementation of the judge may refer the false declaration to be enforced, to conceal evidence to declare the property, the debtor will be punished.

(C construction of social credit system, efforts to promote integrity of the law, the law must be a good legal environment is to improve the property declaration system executed the ultimate goal, but also solve the "difficulty in enforcement," the ultimate purpose of
Credibility is the generation of the Chinese nation believes in the traditional virtues, which is the criteria for conduct themselves in society, is the embodiment of personality, is a measure of the moral standards of personal conduct and the merits of one. However, in recent years, with the further deepening of the market economy, "the old Lai "increasing year by year, and has formed a" deadbeat vicious circle, "a serious impact on the rule of law, good faith society and a harmonious society construction. improve the property declaration system is executed against the" old Lai, "a powerful tool, but also build the necessary integrity of society requirements.

First of all, through the media exposure of the "old Lai" nowhere to hide, the news media "old Lai" list, this with the banking credit system, linked to exit inspection. Faith community should be an open society, a transparent society, should be allowed to "old Lai" in an open, transparent, no place to hide away under the rule of law, increase the "old Lai" Repudiation of the social costs, forcing them to actively fulfill their legal obligations. in the media to disclose the financial disclosure obligations of the debtor to fulfill a list of its improve the reputation of causing loss of property declaration system demoted debtor, but also can promote the debtor obligations.

Second, strengthen the relevant organizations and individuals to assist the court investigation, court enforcement of obligations, in judicial practice, some assist in the execution of legal consciousness, for their own interests and executed malicious collusion need help debtor transferred property. Therefore, should strengthen the organizations and individuals to assist the court on the implementation of the obligations of the debtor and to help their malicious collusion to conceal the transfer of property to assist in the execution of detention, fines and other penalties in serious cases can be held criminally responsible.




Notes:
[1] Lee editor: <<Enforcement Act ">, Xiamen University Press, 2004, p. 410.

[2], such as <<Yunnan Provincial Higher People's Court on the promotion of pilot <debtor assets declaration system> system for the implementation of such a notice of four> "(Cloud Supreme Court issued [1998] No. 16," <Chongqing Municipal Higher People's Court property on the debtor reporting system> "(Trial (August 25, 1999 Chongqing Municipal Higher People's Court.

[3] such as the German Code of Civil Procedure provides assurance system on behalf of the oath, the basic operating procedures are as follows: If the property seized by the enforcement authority not sufficient to repay all the debts, the creditor may perform in accordance with legal procedures to ensure that the oath on behalf of the court, the debtor obligation to perform on behalf of the court sworn guarantee. In the United States, almost all states provide that the creditor can force the debtor to disclose relevant information to enforce the debtor an obligation to accept the opposing counsel's cross-examination, if making a false declaration will be handled in accordance with contempt of court . South Korea has a system of debtor's note, according to the system to appear in court asking the court to summon the debtor status of their property, the debtor may notify the court within a certain period that the property of their situation. if the debtor refuses to provide the court case or justification of their property case is not scheduled to provide his or her property, is a prejudice the implementation of actions, the court may force the debtor to take measures, including detention and fines, detention period is 20 days.

[4] Huang Chenggang: <<On the construction of the property declaration system executed> ", in China Court Net, http / / www.chinacourt.org/public/detail.php?id=160815, access time: 5, 2010 18.

[5] Yellow Dragon: <"On the People's Court of Several Issues Concerning the implementation of practical analysis>>, China Legal Press, 2000, p. 78.

[6] Song Meijun: <<On the assets declaration system in the civil enforcement procedures applicable> ", in Jiangxi Court Net, http://jxfy.chinacourt.org/public/detail.php?id=20339, visit: May 19, 2010.

[7] Hou New: <<On the debtor in property declaration system application in practice> ", in Tung Ping court enforcement network, http://www.dpzxw.com/lilunyantao/20080520/135.html, access time: 2010 on May 20.

[8] Yu Jie: <<On the debtor to declare the property accountability> ", in China Court Net, http://www.chinacourt.org/public/detail.php?id=388457, access time: 2010 May 20. Links to Research Papers Download http://www.hi138.com