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CHINA LEGAL SCIENCE 2019年第5期 | 解决执行难的执行社会化路径探析
日期:20-03-28 来源:CHINA LEGAL SCIENCE 2019年第5期 作者:zzs

ON THE EXECUTION SOCIALIZATION PATH OF SOLVING LAW ENFORCEMENT DIFFICULTY


Deng Wei


TABLE OF CONTENTS


I. LAW ENFORCEMENT DIFFICULTY: A SOCIAL ISSUE

A. The Close Relationship between the Cause of Law Enforcement Difficulty and the        Social Situation

B. The Problem of Law Enforcement Difficulty in the Spectrum of Social Issues

C. Socialization: The Solution Logic of Social Issues

II. THE CONCEPT OF EXECUTION SOCIALIZATION BASED ON SOCIAL GOVERNANCE

A. The Concept of Execution from the Medium Perspective

B. The Expansion of Social Participation: The Core Connotation of Socialization in the      Field of Execution

C. The Expression of the Concept of Execution Socialization

III. THE POSITIVE EFFECT OF EXECUTION SOCIALIZATION

IV. THE INSTITUTIONAL SYSTEM OF THE CONCEPTION OF THE EXECUTION                      SOCIALIZATION

A. Diversified Dispute Prevention and Resolution Mechanism

B. The Long-Term Mechanism of Law Enforcement Difficulty Resolution


In essence, the problem of law enforcement difficulty is a social issue, not just solely on the court. To achieve effective and long-term solutions to the problem, it is necessary to incorporate it into the process of social governance and involve the efforts of the whole society. The path of realization of this concept is given utmost attention in practice. The socialized path of execution is based on the dual drive, the execution demand from the supply side and from the demand side, as the power source. In the meantime, the system is also based on the diversified dispute resolution mechanism and the long-term mechanism for resolution of the enforcement difficulty.


Since the practice of the basic solution to the problem of law enforcement difficulty, a considerable number of historical cases have been resolved. The execution rate is correspondingly improved. It should be noted that the current power to solve the problem of law enforcement difficulty is still dominated by courts, and the participation of other social forces is still insufficient. Essentially, the law enforcement difficulty is a social issue which needs to be alleviated or even be radically cured on the basis of multi-party consultation and cooperation of social forces. Although the court system enhances the overall ability to perform its enforcement work by strengthening its internal governance, due to the tight schedule and heavy tasks, it is normal for the marshal to work overtime. Obviously, the high-intensity working mode of ‘5 + 2’ and ‘white + black’ is difficult to maintain. As the saying goes, A man without distant care must have near sorrow. The fundamental solution to the problem of law enforcement difficulty is not a political movement like a storm. To put it another way, the solution to the problem of law enforcement difficulty requires the court to strengthen its own capacity building and play its role as a host. Meanwhile, we must be soberly aware that the unilateral efforts of the courts are limited. For the sake of solving the difficulties fundamentally, it is also necessary to project the investigative vision to the problem attributes and the causes of law enforcement difficulty. Based on this, countermeasures should be worked out to build the corresponding long-term solution.


I. LAW ENFORCEMENT DIFFICULTY: A SOCIAL ISSUE


At the beginning of this section, it is necessary to affirm that the inquiry on the law enforcement difficulty in this article is carried out in the field of the execution of the effected civil legal documents. Throughout the existing research results, a majority of scholars attribute the enforcement difficulty to the incomplete enforcement management system, the non-standard enforcement work, the low quality of the enforcement team, and poor enforcement measures. Though this kind of view has certain rationality, it does not accurately reveal the nature of the problem. The view is still limited to the traditional cognition that the problem of law enforcement difficulty is a technical problem. In addition, some scholars pointed out that the problem of law enforcement difficulty is a recurring social issue. Regrettably, the scholars who hold this perspective have not elaborated on its causality. It seems that the attribute of the social issue is considered as the established conclusion. In light of that, this paper will firstly discuss the nature of the problem of law enforcement difficulty.


A. The Close Relationship between the Cause of Law Enforcement Difficulty and the Social Situation


Theoretically, there are three stages in a complete legal process: legal creation, legal execution, and legal realization. Among them, the execution work shoulders the mission of turning the legally recognized rights and obligations from the state of being supposed to that of being actual. It can be said that the execution of the effective legal document is a key step in the realization of the law. Execution involves a variety of legal disputes arising from social life. Therefore, it requires executive forces to penetrate deeply into the varied social network of the person subjected to execution, clarify the multiple social roles played by them, intervene in its existing relationship in accordance with the legal instrument in force and then take corresponding actions to realize the legitimate rights and interests of the parties involved in the case. Even in the cases where the courts are required to exercise the execution adjudication powers, execution judges generally do not have to use the legal tools to interpret judgments as meticulously as in judicial trials. It can be said that the enforcement work is closer to reality than the trial work, and is more relevant to the social situation in which it was located.

From a macro perspective, the social transformation period is the social situation rooted in the current enforcement work. The term social transformation is derived from the Western sociological modernization theory and is used to refer to the transformation of society from one situation to another. Nowadays, it is mainly used to describe the positive transformation of society as a whole. China’s social transformation began with reforming and opening up in 1978. In the process of the profound transformation of institutional transition, economic restructuring and social transformation, the differentiation of interests among subjects leads to class differentiation, which in turn leads to the heterogeneous tendency of demand among subjects, thus exacerbating the contradiction between different stakeholders. With the establishment of a diversified dispute resolution mechanism and the dredging of judicial relief channels, the number of valid legal instruments has increased rapidly. For example, through an online and informational arbitration method, an arbitration institution in China has raised the number of rulings from more than 20,000 in 2016 to about 1 million in 2017. It is already easy to imagine that if such a large number of cases all enter into the enforcement process, the traditional enforcement model is clearly difficult to get out of this predicament. Along with the explosive growth in the number of execution cases, the situation of insufficient manpower of the Court Executive Board has intensified. In fact, it precisely reflects the current lower level of social governance modernization in China because modern social governance emphasizes socialization, rule of law, intelligence and specialization. Currently, China’s social governance level needs to be improved. The social credit system is incomplete. The incentive mechanism for keeping faith and the penalty system for breaking credit are still defective. Coupled with the lack of public belief in the rule of law, it is naturally difficult to expect the obligor to automatically perform the legal obligation. As a result, a good deal of execution cases became pending enforcement cases, which conversely amplified the execution demand side gap. Considering the straitened circumstances of the court, the increase in the phenomenon of ‘white ticket of law’ is therefore inevitable.

Under the circumstances of the large quantity of unsettled execution cases which have piled up over the years, the new cases are continuously being included in the to-do list. As a result of this reciprocating cycle, the problem of law enforcement difficulty is therefore difficult to solve. In addition, the universalization of phenomena of white ticket of law affected the credibility of the judiciary, reduce the trust of the society in the court, and then hinder the co-governance process of the solution to the problem of law enforcement difficulty. Finally, it will feedback to the court’s enforcement work, and consequently make things worse.

In summary, there is a great correlation between the cause of law enforcement difficulty and the social situation. But this is only the first step in the discussion because legal issues, economic issues, political issues and other issues are also inextricably linked to society. On the other hand, the social sciences that focus on social issues are not limited to sociology. Psychology, criminology, economics, political science, law and other disciplines also conduct a research of social issues. However, in the degree of abstract research and overall research on social issues, sociological research is clearly more universal and fundamental, which is related to the original knowledge of social issues. By contrast, the other disciplines mainly play the role of seekers of social issue solutions. Therefore, we can only define it as a social issue if the problem of law enforcement difficulty meets the identification criteria of social issues in sociology.


B. The Problem of Law Enforcement Difficulty in the Spectrum of Social Issues


In essence, the problem of law enforcement difficulty is essentially a social issue for it contains the constitutive elements of social issues. Firstly, social issues need to be recognized by an influential group. Zastrow has clarified the difference between the unpleasant social condition and the social issue. He indicates that only when one or more influential social groups confirm the actual existence of the condition and make the general public aware its existence can the unpleasant social conditions be called social issues. Therefore, what is an influential group? Zastrow succinctly points out that it can be measured by the three elements which are the number of people who express such concerns, the intensity of expressing such concerns, and the power of those who express such concerns. The final element among them includes the following two cases: First, small groups or individuals use the substantive power to make the public recognize the existence of the problem. Second, individuals and groups with substantial powers publicize certain condition to the public with the help of their own influence and convince the public that it has become a social issue. As we know, the problem of law enforcement difficulty originated in the 1980s. At the First Session of the Seventh National People’s Congress in 1988, Zheng Tianxiang, then President of the Supreme People’s Court, presented law enforcement difficulty for the first time in the annual work report of the Supreme People’s Court. In the next 30 years, a total of 27 work reports of the Supreme People’s Court mentioned this issue. As the highest judicial organ stipulated by the Constitution, the Supreme People’s Court undoubtedly has a large social influence. The court’s recognition of the issue has aroused widespread public concern. At the same time, the high number of the petitions referred to enforcement and the serious attention paid by the National People’s Congress deputies and Chinese People’s Political Consultative Conference members to the problem of law enforcement difficulty reflects the public’s close concern at law enforcement difficulty.

Secondly, social issues affect a significant number of people. Zastrow is keenly aware of the sociality of social issues, which shows the society itself was affected by the proliferation of personal problems. He pointed out that proliferation is not consistent with seriousness. The impact of certain social issues on individuals may be far from the impact of personal problems on themselves. Tracing it to its cause, personal problems often jeopardize the normal social life and interests of individuals directly, whereas the impact of social issues on individuals includes both direct and indirect dangers. Correspondingly, in the field of executing, the universalization of phenomena of white ticket of law has damaged legitimate interests of concerning parties. Meanwhile, the heavy stress of case load would have a negative effect on the performance of the enforcement. As we know, the large number of backlogs of execution cases is negatively correlated with the low completion rate of enforcement case of court. The failure to effectively lessen the amounts of stock cases and increment cases is not conducive to improving the credibility of the judiciary. Simultaneously, it will jeopardize the substantive protection of the legitimate rights and interests of the public. As Professor Shen Kui pointed out, ‘The risk is very close to us and far away from us at the same time.’ Virtually, the potential factors that pose a hazard to social order are ubiquitous in the real world. However, it is difficult for us to predict when, where, and in what extent the future hazard will occur accurately. By the same token, as one of the participants in the market economy, the public is always at risk of economic disputes and thus need to turn to the court for enforcement at any moment. Consequently, if the problem of law enforcement difficulty cannot be properly resolved, once risks happen, not only will the legitimate rights and interests of the market entities fail to be effectively protected, but the market economic order will also be disrupted, which further magnifies the negative impact on solving the problem of law enforcement difficulty. In addition, the spread of modernization risks has a boomerang effect. It means that the risk will hit those people who created risk or benefit from risk sooner or later. Although the party subjected to execution may be probably beneficial from the failure of the execution of the case, the person concerned will eventually be hit by a risk when his lawful rights and interests are damaged and the court is required to apply for enforcement. In summary, the problem of law enforcement difficulty affects a considerable number of people in a directly or indirectly way.

Thirdly, social issues need to be corrected through collective action. Social issues bare the nature of sociality both in its origin and its consequences. Therefore its solution requires the full use of social forces. In a sense, the wider participation of the social forces, the more likely it is to solve the social issue. For the solution to law enforcement difficulty, the long-term exploration of the court to tackle the problem is hard and realistic. However, from the Major Battle for Enforcement carried out by the court system in 1992, to the Execution Year activities carried out by the national courts in 1999, and to the centralized clear backlogs activities carried out by the people’s courts since 2006, the conclusion has been proved repeatedly by history that the law enforcement difficulty cannot be solved only by the courts’ effort. And it can be further stated that, solving this problem is a systematic project that demands widely mobilizing various forces including the masses of the society, the people’s courts, party committees at all levels, the people’s congresses, and the government, and adopts a governance strategy of the cooperation and co-governance of multi-subjects.

It thus can be seen the problem of law enforcement difficulty is in the spectrum of social issues. However, the beginning and development of different kinds of social issues are characterized by their unique regularity and can be classified into each system. In a transitional society, with the method of classification by the standards of the main causes, social issues can be divided into structural social issues, changing social issues and anomie social issues. In the specific case of law enforcement difficulty, on the one hand, the obligors’ misconduct forms the causes of the problem. On the other hand, considering market participants’ inherent nature of pursuing profitability, the structural imbalances, dysfunctions, relationship disorders, and integration misalignment in the process of social modernization and social transformation are the leading factors that mostly give rise to the problem of law enforcement difficulty. Therefore, the issue should belong to a changing social issue.


C. Socialization: The Solution Logic of Social Issues


The nature of the problem of law enforcement difficulty has been clarified. On this foundation, the key to solving this problem can be found out. In a word, the solution to this problem needs to follow the logic of solving social issues, namely socialization. Hitherto, the academic circle has reached a consensus on the view that the solution to social issues is socialization. It is generally accepted that the solution logic is mainly embodied in the following three aspects: solving conditions, solving principles and the process of implementing the targeted countermeasures. Specifically, the solution to social issues usually requires basic conditions including scientific research by a group of people, adequate social attention and social strength, and scientific social countermeasures. At the same time, to ensure the effective resolution, the solution must follow the basic principles of social regularity, social normativeness, social publicity, social efficiency, and social progress. Moreover, in the process of implementing the countermeasures, only based on the cooperation and putting into practice by the social forces, can the scientific countermeasures be effective and ultimately solve the social issues.

Hence, the problem of law enforcement difficulty as a sort of social issues should be taken into overall consideration on social governance strategy altitude because of the close relationship between law and society. And the embedding of law in society is deeper than that of economic embedding. Therefore, for the purpose of achieving the goal of good social governance, we must pay attention to the function of the rule of regulation. In the mutual adjustment between society and the rule of law, if the resolution of the disputes and the channels of relief such as trials and arbitrations are interpreted as the transformation from the factual relations to the legal relationship in the process of applying the law, the enforcement might be regarded as a key to the transformation from the legal relationship to the real state. Consequently, execution work is closely related to the stability of the legal order, to the cohesion of the rule of law consensus, and even to the development process of building a society ruled by law. If the problem of law enforcement difficulty remains unsolved, it will lead to strong public doubts on the legal authority, and then destroy the credibility of the judiciary and undermine the foundation of the rule of law. The unremitting pursuit of ruling by law will eventually become a utopian fantasy. On the other hand, the rule of law is the most important guarantee of social governance. The report of the 19th National Congress of the Communist Party of China has already pointed out: ‘we will step up institution building in social governance and improve the law-based social governance model under which party committees exercise leadership, government assumes responsibility, non-governmental actors provide assistance, and the public get involved. We will strengthen public participation and rule of law in social governance, and make such governance more intelligent and more specialized.’Among them, the effective execution of the effective legal documents is not only a powerful manifestation of the legal authority, but also the inherent meaning of improving the legalization level of social governance. At the same time, the concept of execution socialization, which takes good governance as the goal orientation, is in line with the practical purposes of executing socialization management. Furthermore, the social governance pattern of building a joint, co-governing and sharing one requires strengthening the prevention and mitigation of social contradictory mechanisms and correctly handling internal contradictions among the people. The enforcement work of the court is the key to completely resolve the contradictions and the disputes. Therefore, the discussion of the problem of law enforcement difficulty and the representation and interpretation of the concept of execution socialization in this paper are based on the considerations on social governance.


II. THE CONCEPT OF EXECUTION SOCIALIZATION BASED ON SOCIAL GOVERNANCE


A. The Concept of Execution from the Medium Perspective 


In order to define execution socialization more precisely, firstly, it is necessary to clarify the meaning of the word execution. The word execution in The Modern Chinese Dictionary is defined as the execution of matters stipulated in policies, plans, orders, and judgments. Obviously, this definition is not an interpretation from the perspective of court execution. From the perspective of the court, execution is often referred to as enforcement with significant compulsory characteristics. In general, the execution carried out by the court are mostly civil enforcement which also involves the civil part in the criminal cases with civil accusation. Consequently, enforcement is generally referred to as the abbreviation of civil enforcement. However, the holder of execution socialization takes the execution from a macro perspective and maintains that execution socialization should be expanded to criminal cases and administrative cases. It is worth noting that there are significant differences among the criminal execution, civil execution and administrative execution in the legal relationship, the object of execution and the legal benefits. Therefore, the specific contents of the execution socialization in different areas of execution should be different.

This article only discusses the execution socialization in the field of civil cases mainly based on the following considerations. Firstly, civil execution concerns private rights. The broad discretion to dispose of private rights and the respect to the party autonomy provides the wide spread constructing space for the system of execution socialization. It contributes to argue a major minus which can play reference function on the guidance to social forces to participate in specific execution activities in the areas of criminal execution and administrative execution. Secondly, the special actions, which are currently carried out by courts, are mainly directed to civil cases, especially those involving people’s livelihood, cases in batch and cases with the large target amount. At the time that the problem of law enforcement difficulty has just been preliminarily solved, the study on the topic of establishing a long efficiency mechanism on solving this problem is of very practical significance. Among them, the concept of execution socialization offers a cut-in point to this study. 

How to interpret the concept of execution? It is widely accepted that execution refers to the legal activities in which the state organs with executive powers take to enforce the content of the effective legal documents when the obligor fails to perform the obligations determined by the legal instruments in force.

It can be seen from the general notion of execution that it is a counterpart to performance. Execution behaviour is characterized by the externality, the compulsion, and the passiveness. By contrast, performance behaviour is that the party consciously fulfils the obligations determined by the legal documents and has the characteristics of internality, consciousness and initiativeness. In fact, the voluntary performance of the obligor is the execution of the provisions of the effective legal instrument, and lies within the range of the generalized concept of execution. In a way, the voluntary performance of the obligor can also be regarded as an execution behaviour. In terms of the realization of the rights and interests of the winning parties, the voluntary performance of the parties and the enforcement of the courts can be said to be different in terms of their methods, but the purpose and result are actually the same. Furthermore, there is certain rationality of the dichotomous interpretation of execution and performance in the field of court enforcement. However, from the macro perspective of social governance, the obligor is a social group that cannot be ignored in the process of solving the problem of law enforcement difficulty. The voluntary performance of the effective legal documents by the obligor is conducive to alleviating the pressure of enforcement work, saving judicial resources and improving the credibility of the judiciary. At the same time, a boost in the voluntary implementation rate will push forward social development in trustworthiness, and then speed up the step of social governance modernization. Whereas limiting our focus on the courts and ignoring other relevant social forces obviously deviates from the logic of social issues and runs counter to the diversified structure of social governance of co-government, co-construction and sharing. Therefore, the attention to the voluntary implementation phase and the enforcement phase is required in the concept of execution socialization.

Thus, the interpretation of execution in the concept of execution socialization is not only different from the execution in a broad sense but also different from the execution in the general sense. Further, if the execution in the broad sense is regarded as a macroscopic concept, and the execution in the general sense is regarded as a microscopic concept, the term execution based on the concept of execution socialization is positioned on the perspective, which refers to the legal activities that the relevant agencies or organizations implement the contents of the effective legal instruments in accordance with legal procedures when the obligations of the obligor to perform the effective legal instruments, or in the case where the obligor fails to perform the obligations set out in the legal instrument in force.

The meso interpretation of the word execution in the concept of execution socialization is not intended to break through the original meaning of the word execution. Rather, through the comparison analysis between the word enforcement and the word performance, it reveals the concern for the voluntary performance from the perspective of execution socialization. Thus, the term execution mentioned below is still based on its general interpretation.


B. The Expansion of Social Participation: The Core Connotation of Socialization in the Field of Execution


It is well known that the theory concerning the field of execution is comparatively weak and cannot provide sufficient theoretical support for the construction of a long-term mechanism for solving the problem of law enforcement difficulty. From the author’s view, there are roughly three causes for the situations above. Firstly, the trial works have long been the core business of the court, which leads to the lack of concerns about the enforcement work, causing the cognitive bias on the necessity of theory research of enforcement. Secondly, there is a misconception in the academic circle that the enforcement work requires no theoretical guidance and the value of the research on the enforcement is trivial. Few scholars have conducted a systematic study of execution issue. Thirdly, the problem of law enforcement difficulty is not a pure law problem, but a recurring social issue. Thus, an interdisciplinary study is required if a comprehensive perspective is to be achieved. So far, there are still a handful of academic achievements in academic research for execution issues with the method of interdisciplinary research. To some extent, the lack of intellectual support has hindered the deepening of the reform of the enforcement system and mechanism. In the light of this, during the researching process of enforcement issues, it is necessary to learn from the existing research results of socialization in the areas of humanities and social science.

The term socialization has been given various interpretations in different contexts. The first interpretation: in the field of economics and politics, the term socialization has something in common with the so-called nationalization. It generally refers to the ownership and control of productivity tools by the community, and it is necessary to be managed by the community’s political institutions. The second interpretation: in the field of sociology and psychology, the interpretation of the term socialization is just as what Robert K. Meton states: ‘Through the process of socialization or in the process of interacting with ‘important related persons’, people form a series of different value tendencies, thus controlling specific behaviour in the environment’. The third interpretation: in the context of social governance, socialization refers to the process of sharing the fruits of development of multi-governance with multiple governance subjects participating in the governance of social public affairs under the leadership of the Party and the government. The fourth interpretation: some scholars have paralleled socialization with‘big government’, ‘marketization’ and ‘social influence investment’ as a tool for solving social issues and realizing social governance provided by‘the third sector’. Thus it can be seen that the socialization under the first and fourth interpretations is highlighted as the acquisition of the dominant position of social power. The term socialization in the second interpretation is based on the interpretation of social shaping theory. The term socialization in the third interpretation refers to the joint participation in social governance under the cooperation between multi-social subjects.

In the field of execution, the academic circle’s research of socialization has focused on the field of criminal execution. At present, there are two views on the interpretation of criminal execution socialization. The first one is that criminal execution socialization mainly refers to the intervention of social forces in criminal execution. Another viewpoint is that socialization refers to prompting criminals to acquire relevant knowledge and skills and shape the conviction and personality of criminals in line with the normal life of society through broadening the connection between offenders and society during the process of the penalty execution, and ultimately facilitating the return of criminals to society. Through the comparative study, it can be seen that the first viewpoint and the third interpretation, the second viewpoint and the second interpretation are matched, which also confirms the feasibility of drawing on other disciplines in the study of execution. On the other hand, although the second viewpoint is based on the interpretation of social cultivation theory, considering that the basic fact that criminal enforcement of the court is backed up by the state’s public power and then forces the person subjected to execution to fulfill its obligations, the mandatory characteristics of criminal execution determines that the first and fourth interpretations do not apply to the word socialization in the field of criminal execution. Thus, it is necessary to expand the social participation in criminal execution to achieve re-socialization of criminal offenders, which confirms the first viewpoint. In the field of administrative execution, based on the public rights of administrative power and the institutional arrangements for administrative litigation, the executive power of administrative organ is authorized by law and cannot be transferred to political institutions of community or the third sector without the permission of the law. In summary, the core connotation of socialization in criminal execution and administrative execution should be defined as expanding social participation in execution.

In the same way, civil enforcement has the characteristics of compulsory and legal authority, which determines that the core connotation of the term socialization in civil execution is to expand social participation in civil execution. This is also in line with the practical community’s description of the execution phenomenon and the refinement of practical experience. In fact, execution socialization is an improvement of the execution model from single national arranged pattern to society co-assistance system, which is the initial stage of multi-party governance. It still has a long way to go from the ideal model constructed by the concept of execution socialization in the academic sense. In other words, the concept of execution socialization refined by the practical community cannot be completely equated with the idea of execution socialization based on social governance. Therefore, it is necessary to define the connotation of the concept of execution socialization by examining the perspective of the executive subjects, the execution tasks, the execution purposes, and the means of execution.


C. The Expression of the Concept of Execution Socialization


What executive subjects are included in the concept of execution socialization? In order to solve this problem, we should firstly start with the interpretation of the term society.  In the field of execution, the extension of the term society is flexible, which always has a large room for interpretation. According to the Fifth Five-Year Reform Outline of the People’s Court (2019-2023) (hereinafter referred to as the Fifth Five-Year Reform Outline of the Court), the leadership of the party committee, the coordination of the politics and law committee, the supervision of the people’s congress, the support of government, the sponsorship of court, the cooperation of departmental and social participation constitute a pattern of comprehensive governance of the problem of law enforcement difficulty. It can be seen that the term society is narrowly defined, which mainly includes the third sector such as community organizations and voluntary organizations. However, in a few other cases, the term society is also taken as executive assistance forces that include the National People’s Congress, the government, the department, and the social organization, which works in tandem with the court. In any case the court as the main role of the executive work has not been included in the scope of the word society.

The cause of the viewpoints as mentioned earlier is formed with the goal of improving execution efficiency, relieving enforcement work pressure and finally solving the problem of law enforcement difficulty, rather than with the purpose of improving social governance as a strategic starting point. As mentioned earlier, execution work is a component of social governance. Thus, as one of the social forces involved in social governance, the court’s position in the execution socialization and the maximization of its own functions are issues that should be answered in the conception of execution socialization. Then, it can be seen that the concept of execution socialization based on social governance does not exclude the court’s due role in the enforcement work. On the contrary, there is a complementary relationship between the court and other social forces in solving the problem of law enforcement difficulty. For one thing, the court’s strengthening of its own governance is more conducive to driving other forces to participate in the execution work. For another, the broad participation of social forces helps to focus the enforcement power of the court on solving difficult cases. Coupled with the interpretation of the concept of execution at the medium level, the concept of execution socialization needs to maintain a certain concentration on the reform of the execution system and mechanism. In other words, under the broad vision of social governance, to achieve the link and integration of execution resources, including the courts, party and government organs, and obligors, all social forces related to the execution of work should be the main subject of the concept of execution socialization.

At present, the public participation in execution work is mostly motivated by the solution to the problem of execution difficulties and the immediate intention is to improve work efficiency and relieve work pressure. Objectively speaking, the court’s execution of the effective legal instruments with the participation of other social entities has achieved remarkable results and is worth promoting. However, this mode can hardly promote modernization of social governance, and it is difficult to bear the guiding function of establishing a long-term mechanism for solving the problem of law enforcement difficulty. Therefore, we should promote the combination of execution socialization and social governance projects. In order to achieve this goal, it is necessary to establish the concept of execution socialization, and then realize the social transformation of execution tasks and execution purposes. For the former, in view of the characteristics of publicity and socialization of the problem, the task of execution should work out with the cooperation of many social entities. For the latter, the purpose of execution socialization refers to promoting social practices in the process of social governance and improving social governance to meet the people’s growing needs for a better life. At the same time, in the process of solving each execution case, we will further enhance and consolidate the social credit system and maintain social order and stability. As the saying goes, the people are the foundation of a country and only when the people lead a good life can the country thrive.

As far as the means of execution are concerned, the execution socialization path based on the conception of execution socialization presents the following characteristics: As for the concerning domains, the conception of execution socialization focuses on both the demand side of execution and the supply side of execution. As we know, supply and demand are two important concepts in economics. Specific to the execution area, the supply side focuses on the quantity and quality of execution cases attributable to the court’s jurisdiction. The demand side mainly focuses on the path from the idealistic state to the practical state. They are integrated into the goal of fulfilling the rights and obligations set out in the effective legal instruments. By combing the existing literature, it can be found out that the practical community’s interpretation of the execution socialization starts mostly from the demand side and focuses on the following two points. The first one is building a collaborative working mechanism. For instance, the Standing Committee of the People’s Congress of Xuzhou has issued China’s first local law named the Decision to Strengthen the Joint Enforcement Work of the People’s Courts. Consequently, the courts in Xuzhou have established an information exchange system, credit information sharing system and intensive inquiry system with more than 30 local departments. The second one is achieving the goal of the orderly integration between the enforcement work and the construction of the social credit system, and constructing the execution of the deterrence mechanism through credit incentives and credit discipline. These attempts are important for constructing a systematic execution socialization mechanism, but it neglects the concerns of the supply side of execution, which is in the research field of the conception of execution socialization.

From the time dimension, the initiation of the executive process generally begins when the obligor refuses to perform the obligation without any reason within the time limit determined by the legal instrument in force, and then the party with the right applies to the court. This conclusion is based on the interpretation of the word execution in a narrow sense, derived from the perspective of the demand side of execution. As mentioned earlier, based on the meso interpretation of the word execution, the concept of execution socialization focuses not only on the stage of enforcement, but also on the stage of voluntary implementation of the parties. At the same time, because of the adherence of the society-departmentalism, to pursue the unification of legal effects and social effects, the concept of execution socialization is also concerned with the relief phase after the end of this execution action. Nowadays, the social principal contradictions have undergone epochal changes. Among them, the prerequisite for meeting the needs of a better life is to achieve the minimum living security for citizens. In view of this, execution socialization will also focus on the link between the executive system and the social relief system, and explore the role of social forces in the field of social assistance. From the perspective of the supply side of execution, to reduce the total number of execution cases from the source and ease the pressure on execution work, the concept of execution socialization also focuses on preventing and substantially resolving social conflicts.

As for the specific design of the execution path, the execution mode based on socialization conception has the salient features of diversity and hierarchy. First of all, the term socialization bears multiple interpretations, which corroborates that there are differences in the roles played by social forces. Similarly, social forces may also play different roles in the enforcement work and then the socialization approaches have the characteristics of diversity. More importantly, in the sociology research on public participation in social governance, public participation has obvious hierarchical characteristics due to differences in the degree of public participation in the social governance process. Thus, the famous public participation ladder theory is formed, with Sherry R. Arnstein, Connor and Akram as its representative creators. Correspondingly, the problem of law enforcement difficulty, as one of the social issues, needs to be addressed in the socialization process of social governance. Thus, there is also a difference in the degree of participation of social forces in enforcement work. At the same time, the fact that it is difficult to achieve the goal of building an execution socialization system with one strike provides a realistic basis for construction of the execution socialization ladder.

Based on the cognition, it can be said that the relationship between the conception of execution socialization and execution socialization is hyponymy. In other words, the expanded social participation in execution (including the Party and government organs as well as obligors) is only one of the constituent elements of the concept of execution socialization. In addition, considering that the court is also one of the subjects of execution socialization, the execution informationalization construction and execution standardization construction should also be included in the scope of the conception of execution socialization.

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III. THE POSITIVE EFFECT OF EXECUTION SOCIALIZATION


It is generally believed that there are two possible forms of the demise of social issues. One is natural demise and the other is an artificial correction. Then, is there a possibility of expecting the problem of law enforcement difficulty to disappear naturally? Natural extinction requires the conditions which underlie social issues no longer exist. Specific to the field of execution, it can be said that as long as there is an effective legal document, there is a possibility that the enforcement of the effective legal document is difficult. The expectation that the problem of legal execution will naturally disappear in the process of building and perfecting a society ruled by law is clearly realistic. The author believes that based on the conception of execution socialization, the artificial correction of the problem of execution difficulties is not only an era of comprehensive promotion of the social governance system and governance capacity modernization, but also beneficial to the execution system reform.

We know that modern social governance not only seeks effective resolution of contradictions and disputes, but also seeks coordination in building, governance and sharing. For the former, by establishing a diversified dispute resolution mechanism, we can get rid of the excessive dependence on the dispute resolution model of litigation, judgment and enforcement, and then substantially resolve conflicts and disputes and ensure the healthy operation of social order. For the latter, achieving this goal requires multiple parties to cooperate on the basis of mutual trust. Honesty is the premise and foundation of trust. Following the norm depends on the construction of social integrity system and the cultivation of the socialist legal spirit. Establishing and perfecting the social credit system is not only the inner essence of modern social governance, but also an important point for implementing the deterrence mechanism. Therefore, in the process of execution socialization governance, on the one hand, we can accumulate valuable practical experience for the socialization of social governance, promote the development and improvement of the social credit system, and promote the process of modernization of social governance. On the other hand, the conception of the execution socialization based on social governance will integrate the execution work into the social governance process, which is a powerful guarantee to assist the smooth implementation of the execution mechanism. Since the 18th National People’s Congress of the Communist Party of China, the replacement of social management by social governance has officially become the keyword and methodology of social construction in China. Therefore, integrating execution work into the social governance system will help to improve the political position of execution work. Under the communication and coordination of the party committee, the power barrier between the administrative organs and the judicial organs is broken, and the information technology such as big data and artificial intelligence will also supplement in realizing resource sharing and information exchange between the two kinds of organs. At the same time, we should also highlight the following aspects: seeking the support of the party committee, including the assistance of court execution into the performance evaluation index system of the local government and party major leaders, and improving the enthusiasm and sense of responsibility of the administrative organs to assist the courts in their execution. 

Moreover, the execution socialization relies on the incentive and disciplinary mechanism of the social credit system to consolidate and strengthen the deterrent effect of the execution deterrence mechanism on the obligors, thereby increasing the automatic performance rate and alleviating the pressure on the court to perform enforcement work. This assertion can be theoretically supported by the two assumptions of employee behavioural motives in the field of management: the economic person hypothesis and the social person hypothesis. The core point of the economic person hypothesis is that the pursuit of maximizing personal interests is the basic motivation of human beings. Correspondingly, through the disciplinary mechanism in the social credit system, the cost of untrustworthy is raised, which push the untrustworthy obligor to actively fulfill the obligation in the process of measuring interests. The social person hypothesis focuses on the social needs of people, mainly in the acquisition of inner spiritual satisfaction. Execution socialization, with the help of the incentive mechanism in the social credit system, does a good job of typical propaganda, plays a role model, makes the concept of law-abiding integrate into the people’s mind and internalize into the existence of ideology, and finally encourages people to seek the spirit satisfaction in the process of consciously fulfilling the effective legal documents. It is not difficult to imagine that when the spirit of advocating the rule of law is rooted in the hearts of the general public, the goal of realizing the rule of law in social governance is as natural as it is.

At the same time, under the guidance of the conception of execution socialization, the socialization of the execution work will be effectively linked with the execution standardization construction and execution informatization construction, leading to the transformation and upgrading of the execution institutional mechanism. Arnstein pointed out that information is the first stage that is crucial to pointing to true participation, because there is no participation without information. In this sense, the basic conditions and premise of social participation in civil execution work lies in the judicial disclosure. The Fifth Five-Year Reform Outline of the Court pointed out that it is necessary to further deepen judicial disclosure, improve the information disclosure of the execution, and build a more open, dynamic, transparent and convenient public justice system. It can be foreseen that in the next five years, the information disclosure of the execution will definitely make a difference. Taking this opportunity, under the guidance of the concept of execution socialization, orderly expanding the social participation in execution work has become one of the driving forces for increasing the intensity of execution publicity. The improvement of the transparency of the execution work will release the information pressure of the public in the field of execution, which will form a public pressure on the execution of the court, and push the acceleration of the standardization process of the execution, in order to ensure that the execution of the case can withstand the inspection of history and people.

In fact, an open attitude is a force in itself. The open attitude demonstrated by the gradual enhancement of the court’s execution publicity helps to enhance mutual trust and cooperation between other social forces and the courts, and promote the enforcement work to win broad support from the party and government organs and society. Through the cooperation with other social forces, obstacles such as illegal intervention and local protection in the enforcement of the court are expected to be overcome, and the quality and efficiency of the execution will be improved. It is worth mentioning that to assist the efficient operation of the execution mechanism, it is necessary to utilize the power of information technology to form a network of specific systems and realize resource sharing between different management agencies and departments. In light of this, in the issue of improving the assistance of the execution mechanism, it is necessary to pay attention to the linkage relationship between the execution socialization and the execution informatization, and it should not be biased. In fact, the linkage between the execution socialization and the execution informatization has also been revealed in other execution stages. For example, in the execution publicity process, the application of blockchain technology will help achieve the sharing of execution information with the whole society. For another, in the property disposal process, the network and socialization trend of court litigation asset auctions puts forward higher requirements for execution socialization and execution informatization.

Furthermore, expanding social participation in execution will help ease conflicts, make execution work softer, and increase the acceptability of execution. The Report of the Supreme People’s Court on the Work of the People’s Court to Solve the Law Enforcement Difficulty clearly states that the process of execution must be the process with intensive conflict and strongest confrontation in judicial activities. However, different types of execution cases differ in the form and intensity of their resistance. Therefore, under the guidance of the conception of execution socialization, through the refined management of the execution case, the execution strategy shall be appropriate to the cases’ attributes and characteristics in different categories. For example, in cases such as apologizing, supporting the elderly, raising and visiting children, under the supervision of the court, social forces such as grassroots’ democratic self-governing organizations are introduced to lead the execution process. For cases involving land utilization rights, real estate, equity, etc., where disputes or targets are large, and execution needs to be enforced by the court, the court may introduce other forces to participate in mediation and assist to execution through the purchase of social services. The author even believes that, when the time is ripe, the experience of the market-based reform of the UK courts can be adopted to pilot the certificated bailiffs team to hand over certain types of civil execution cases to bailiff company. This involves a new understanding of the nature of civil execution and will not be further extended here.


IV. THE INSTITUTIONAL SYSTEM OF THE CONCEPTION OF THE EXECUTION SOCIALIZATION


As mentioned earlier, law enforcement difficulty is essentially a social issue. The solution to social issues needs to rely on the multi-party joint efforts. In other words, to tackle execution difficulty, we should include it in the process of social governance. Therefore, the concept of the execution socialization is based on the consideration of social governance. Specifically, the concept is based on a diversified dispute resolution mechanism and a long-term execution solution mechanism, and is in the perspective of double drives which are from the execution of the supply side and the execution of the demand side.

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A. Diversified Dispute Prevention and Resolution Mechanism


The diversified dispute prevention and resolution mechanism mainly consists of the dispute prevention and resolution mechanism outside the lawsuit and the dispute prevention and resolution mechanism during the lawsuit. Among them, the former includes dispute prevention mechanism and alternative dispute resolution mechanism. The author believes that the dispute prevention mechanism mainly operates in the following three aspects: Firstly, relevant institutions and organizations should have global consciousness, perform duties in a timely manner according to law, and smother potential disputes in the bud status. For example, for enterprises that have their business licenses revoked or apply for cancellation of registration, the liquidation system should be strictly enforced to prevent the executors from transferring their assets. At the same time, the existing vulnerabilities and shortcomings in the existing system should be repaired and improved in time to prevent functional misplacement during the execution process. Take the function of the market replacement mechanism in the execution as an example. Under the current conditions of insufficient market development, the phenomenon of using execution procedures as bankruptcy procedures, or providing proof of non-performing loan write-off for state-owned banks through the execution etc., actually exist in reality. Such cases usually perform poorly and are one of the incentives for the problem of law enforcement difficulty. Secondly, we should build a populizing law work pattern, strengthen legal propaganda, and create a strong rule of law atmosphere. At the same time, the cohesive force builds a stable, fair and transparent legal business environment and establishes an early warning mechanism for conflicts and disputes. Thirdly, we should increase the propaganda of the diversified dispute resolution mechanism, so that the public can clarify the advantages and disadvantages of each dispute resolution system and the scope of disputes that can be resolved accordingly.

In the dispute resolution spectrum, alternative dispute resolution mechanisms play an important role. Hiroshi said, ‘In the future, the trend (of conflicts and disputes resolution work) is to continue to set up new external judicial dispute resolution agencies in the field of various disputes, or to complete such organs.’ It can be said that the construction of the alternative dispute resolution mechanism aims to make full use of the social organization resources such as grassroots’ democratic self-governing organizations, autonomous organizations, industry organizations, mediation organizations and arbitration organizations existing in the society, and to fulfill their inherent advantages, including flexible period, the simple procedural process and the low cost. Moreover, through mediation, arbitration, reconciliation, negotiation, etc., encouraging both parties to reach an agreement on dispute resolution under the premise of meeting the legal bottom line requirements, and achieve negotiation justice. In turn, the source of the case is reduced, and the pressure on the civil execution demand side is eased.

As far as the dispute prevention and resolution mechanism during the litigation is concerned, on the one hand, the court should strengthen pre-trial reconciliation and in-court mediation, substantively resolve contradictions and disputes, and improve the automatic execution rate of legal documents. On the other hand, it is necessary to strengthen coordination between the court’s internal filing, trial and enforcement. In the case of compliance with immediate enforcement conditions, the obligor should be urged to perform immediately thus reducing the number of enforcement cases. At the same time, it is necessary to increase the application of litigation preservation, including pre-litigation property preservation, preservation according to the application of the parties during the litigation and preservation according to the power of the court during the litigation. In addition, the Fifth Five-Year Reform Outline of the Court pointed out that it is necessary to encourage the insurance guarantees of property preservation, improve the orderly connection mechanism between the preservation application and network inspection of the execution, in order to promote mediation, reconciliation and execution through preservation.

We should also pay attention to the effective connection between litigation dispute prevention and resolution mechanisms and non-litigation dispute prevention and resolution mechanisms. To achieve this goal, we need to further improve the court’s special mediator system. After years of judicial practices, the court’s special mediator system has been preliminarily formed and played an important role in the resolution of contradictions and disputes. However, there are still problems such as the low quality of the special mediator team, the ineffective internal support of the court, and insufficient funding guarantees, which are in urgent need of further improvement. Besides, for the cases which are found in the non-litigation dispute prevention and resolution mechanism and can obtain more effective relief through litigation, the parties in such cases should be informed in a timely manner, and the relevant materials obtained in the previous investigation process should be promptly transferred to the court.

B. The Long-Term Mechanism of Law Enforcement Difficulty Resolution


The foregoing part has revealed the hypernymy relationship between the concepts of execution socialization and the socialization of execution, and the integrated execution informatization and execution standardization into the connotation of socialization. Furthermore, it is necessary to construct a long-term mechanism to solve the law enforcement difficulty by setting up cross-illumination among the execution informatization, execution standardization, and execution socialization.

Take the legal documents coming into effect as the starting point. The author believes that to build a long-term mechanism to solve the execution difficulty, we should firstly establish and improve the voluntary execution mechanism of the parties from the perspective of the supply side. This mechanism mainly includes the execution publicity systems and the execution deterrence mechanisms. For the former, the court should use the blockchain, big data, artificial intelligence and other technologies to strengthen the execution publicity and achieve effective distribution of the execution information on the basis of integrating the existing execution publicity platform. At the same time, in the execution standardization process, improving the execution publicity system, orderly expanding the scope of execution information disclosure, and improving the transparency of execution shall be adopted. Furthermore, the court should promote cooperation with the news media. In the execution of propaganda work, the advantages of traditional media and new media should be integrated, and public opinion guidance should be strengthened to enhance the quality of publicity. It is worth pointing out that the administrative authorities are also one of the new forces that cannot be ignored in the propaganda of execution. With the privatization of administrative tasks and the sweeping of Public-Private Partnership, the participation of administrative authorities in private law relations has become increasingly active. Therefore, it is not surprising that the administrative agency acts as an obligor party in the legal relations of execution. Taking into account the guidance role of the administrative organs in promoting the rule of law in social governance, the situation of implementing the legal documents should be incorporated into the performance evaluation index system, and a strong accountability system should be established to urge the administrative agencies to voluntarily implement the effective legal documents.

For the latter, in the level of execution informatization, the disclosure of the list of the untrustworthy executors needs to be publicized by means of various types of execution information disclosure platforms. At the same time, it is necessary to strengthen the automation level and intelligence level of execution office, and use modern information technology to achieve a timely update of the blacklist of untrustworthy. In the level of the execution standardization, it is necessary to further clarify the inclusion criteria for blacklists, blacklist inclusion and removal procedures, and corresponding remedies, thus improving the legal regulation of blacklists. At the level of socialization, we should build an untrustworthy, everything-limited pattern of credit punishment system based on the leadership of the party committee, the cooperation of the departments, and the support of the industry and the community. Furthermore, while exerting the disciplinary function of the social credit system, we should also pay attention to the guiding role of the incentive function and form a value orientation of creditworthy and trustworthy benefit. For example, through a scientific and reasonable credit evaluation system, enterprises with higher credit evaluations are given policy dividends in terms of public services, administrative examination and approval, and honor application.

In the enforcement stage, the Fifth Five-Year Outline of the Court has clearly responded to the question of how to promote the execution informatization construction and execution standardization construction in the enforcement phase. For the execution informatization construction, the Fifth Five-Year Outline of the Court pointed out that it is necessary to optimize and upgrade various types of enforcement information system platforms, improve the enforcement platform of the four-level court integration, build a mobile case handling platform that meets the characteristics of implementation, and promote the application of intelligent assistance, like big data analysis technology. For the execution standardization construction, the Fifth Five-Year Outline of the Court also pointed out the direction which is to formulate the enforcement law, establish and improve the behavioral normative system of execution with the operating procedures as the core, improve collaborative enforcement and entrusted enforcement mechanism, standardize the file and approval process to specify execution, upgrade execution and cross-execution, and strictly regulate the procedures for closing, recovering and withdrawing the cases which has no property to be implemented. Finally, it can promote the centralization and dynamic management of the final cases.

Specifically, enforcement can be divided into the execution start-up phase, the execution phase, the execution referee phase, and the execution supervision phase. In view of the significant differences in the focus of execution at different stages, the specific requirements for the execution informatization, execution standardization and execution socialization are different at different stages, and it is necessary to discuss them separately.

In the enforcement start-up phase, the author believes that the enforcement case should be classified and refined in management. Through the summary of practical experience, the focus of work in different types of cases is ascertained. At the same time, social forces should be introduced to strengthen the enforcement reconciliation and reduce the number of enforcement cases. In the enforcement phase, for money and debt cases, it can be divided into two major sections: property investigation control and property management. As far as the property investigation and control section is concerned, the network inspection and control system should be improved, the scope of investigation and control should be expanded, and the functions of freezing and deduction should be strengthened to overcome the shortcomings of low efficiency, high cost and narrow investigation scope of traditional door-to-door property investigation methods. Moreover, through the exploration of enforcement rewards, lawyers’ participation in property surveys, etc., with the help of institutional innovation, we will vigorously develop and assist the enforcement mechanism and mobilize social forces to find relevant clues. At the same time, it is possible to introduce the ‘execution+insurance’ model, set up liability insurance of property preservation and implement reward insurance and other insurance types, and provide new strength support for cracking law enforcement difficulty. In the property management phase, the property management system and the network evaluation auction platform should be optimized, including inquiry, auction procedures, and auction rules and the relevant rules for online auction, and cooperation with third-party net auction platforms should be actively expanded in order to enhance the impact and participation of the net auction, guarantying the realizable rate of property to be sold. For cases of behavioural performance, especially those involving relatives and people’s livelihood, as mentioned earlier, social forces such as basic organizations should be actively introduced to lead the enforcement process. In response to the enforcement of irreplaceable behaviour cases, the court should appropriately apply indirect coercive measures, adhere to the combination of punishment and education, and take multiple measures to settle the case. For the legal disputes that may be involved in the enforcement referee stage, the academic and practical sessions should go ahead hand in hand to promote the study of enforcement legal issues and provide necessary intellectual support for the enforcement referee work. In the enforcement supervision stage, the court should actively accept social supervision by strengthening the special supervisor system and the special counselor system while strengthening internal self-monitoring. In addition, a communication and coordination system of the court and procuratorate should be established to strengthen the links between the court and procuratorate and provide a good platform for the enforcement inspection and supervision. For the procuratorate organ, it is also necessary to establish an account statement for the enforcement cases, and on the basis of the investigation and analysis, focus on the supervision of the multiple problems in the enforcement work.

Finally, as mentioned earlier, the concept of execution socialization adheres to the social standard, not only focusing on the legal effects of execution, but also on the social effects of execution. Therefore, as far as the execution rescue system is concerned, on the basis of improving the existing judicial assistance mechanism, we should actively promote the social assistance system, focusing on resolving the problems of the sources of the rescue fund, fund management, scope of assistance, rescue fund recovery, relationship between execution assistance and related letters, links between the execution assistance and social assistance, etc. At the same time, the existing problems in the social security system should be resolved through the joint construction of multiple entities. In the process of deepening reform, we will continue to improve the social security system to better improve and protect people’s livelihood.


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