民事执行检察监督的程序设计

Connection between Procuratorial Supervision to Civil Execution and Execution Remedies System

民事执行检察监督的总体状况并不理想,各种检察监督方式都遭遇到不同程度、不同内容的实际困扰。一般认为造成这一状况的根本原因是立法缺乏明确规定,其实不明确的法律可以通过立法得到完善,事实上检法两家之间的非共约性恰恰是民事诉讼法修改对之存而不论的原因。为形成检法之间的共识,有必要从法律监督的视角转向与民事执行程序系统内的执行救济相勾连的视角,探讨民事执行检察监督的理论依据,并以民事执行检察监督作为民事执行救济的外在补充。

The procuratorial supervision to civil execution does not have a good situation as a whole, and almost all kinds of supervision measure have encountered various practical difficulties to a certain extent. General opinion considers that essential reason for this situation is the lack of clear legal provisions, while ambiguous legal provision can be amended by legislation and the real cause that the newly enacted civil procedure law laid it aside rests with non - common understanding between the procuratorate and the court as a matter of fact. In order to reach the procuratorate - court consensus, it is necessary to change the point of view from legal supervision to the connection with the remedy mechanism within civil execution procedure to discuss the theoretical foundation of the procuratorial supervision to civil execution, and consider the procuratorial supervision as an exterior complement.