How to do a good job in implementing reconciliation

Execution reconciliation is a special system in the field of civil execution in China. On the basis of voluntariness, the two parties reached an agreement through equal consultation on the rights and obligations determined on the basis of changing the implementation according to law. As an important system in China's civil execution, execution reconciliation is conducive to the people's court to reduce the execution cost, reduce the execution confrontation, effectively solve the problem of "difficult execution", and realize the dual effects of law and society, which is the concrete embodiment of the court's pursuit of "justice and efficiency". However, in judicial practice, the implementation of reconciliation is often at the expense of fairness and justice, suppressing one party's compromise and concessions, so that the other party can benefit from it, or it has become a common means for courts to improve the execution rate of cases and avoid the time limit for case execution. The negative effects are gradually obvious, so it is difficult to popularize and popularize, and even opinions vary. This paper only discusses the social value of execution reconciliation, the difficulties and problems existing in judicial practice, and how to improve the execution reconciliation system, and puts forward some ideas, hoping to be beneficial to promoting the court execution reform and improving the social contradiction resolution mechanism. First of all, the implementation of reconciliation is in the same strain as the mainstream values of society. Marx famously said, "It is human instinct to pursue the beauty of harmony." A harmonious society is the vision of human yearning for a better life, which can be realized through the joint efforts of human beings. The Fourth Plenary Session of the 16th CPC Central Committee put forward the concept of "building a harmonious socialist society" for the first time in the Decision of the Central Committee on Strengthening the Party's Governing Ability, which has since become the mainstream value orientation of society. Without a harmonious social environment, there will be no social stability, social progress and civilization, which is the "hard truth" of social development. At present, the three key tasks put forward by the Central Political and Legal Committee, namely, comprehensively promoting the resolution of social contradictions, innovating social management, and enforcing the law in a fair and honest manner, are an important starting point for people's courts to practice the theme of "serving the overall situation and serving people's justice", deeply resolve social contradictions, maintain social harmony and stability, and ensure all-round economic and social development, and also an effective guarantee for building a harmonious judiciary. The implementation of the reconciliation system by the people's courts is an important implementation of the three key tasks of the Central Political and Legal Committee. It not only embodies the characteristics of active justice, but also innovates the execution management mode and explores the way of case execution, and effectively resolves the contradictions of cases, solves disputes and closes cases. The social effect it brings is obvious and accords with the current social value orientation. Therefore, the popularization and application in judicial practice has important practical significance. Second, the confusion of the implementation of reconciliation 1, the "absence" of legal norms Why is the implementation of reconciliation not as smooth as litigation mediation? Although the reasons are complicated, the most important reason is the lack of legal norms, poor guidance in practice and often unfounded operation. At present, China's laws have some scattered provisions on execution and reconciliation. For example, the first paragraph of Article 207 of the Civil Procedure Law of People's Republic of China (PRC) recognizes that the execution of the settlement agreement reached by both parties is legal; Article 266 of the Supreme People's Court's Opinions on Several Issues Concerning the Application of the Civil Procedure Law of People's Republic of China (PRC) stipulates how to deal with the non-performance or incomplete performance of the settlement agreement reached by both parties voluntarily during the implementation, and article 267 stipulates the time limit for applying to resume the execution of the original legal documents; Article 22, paragraph 2, Article 108, Item (4) and Article 120 of the Provisions of the People's Court on Several Issues Concerning Implementation (Trial) respectively stipulate the ways of entrusting others to perform reconciliation, closing cases and handling execution objections, which are undoubtedly of positive significance to promoting the implementation of reconciliation. However, it can be said that these legislative provisions on the implementation of the reconciliation system are relatively principled, simple in content and not practical, such as the conclusion, review, invalidation and cancellation procedures of effective legal documents, guarantee, resumption of implementation and reconciliation of implementation reconciliation, and so on, and they are at a loss in application. Another example is that the legal nature of civil execution reconciliation is not stipulated, which belongs to private law? Is it a lawsuit? Or do two behaviors coexist or does one behavior have two attributes? There is no clear definition in jurisprudence, and it is also easy to cause controversy in judicial practice, which affects the understanding of the legal effect of the system and the function of the implementation reconciliation system. 2. The execution of the settlement agreement is a new contract reached by both parties to change the rights and obligations determined in the judgment document. After the parties reach an execution settlement agreement, how to deal with the judgment documents that have been given execution content and have entered the execution procedure? In judicial practice, there are mainly the following methods: ① ruling to suspend execution; (2) Making an order to terminate execution; 3. The ruling is suspended; (4) Deciding to stop execution; ⑤ Do not make any ruling or decision. If the debtor fully fulfills the settlement agreement within the agreed time, the court will close the case by "reporting". Otherwise, the court will continue to implement the contents established in the original judgment document, which will not affect the execution procedures that have entered the process, but there is a problem of delaying the execution time. It can be seen that the settlement agreement was reached or revoked, some of which were rulings or decisions of the original execution procedures, and some of which were not, and there was obvious confusion in its application. Objectively speaking, our country's law has not regarded execution reconciliation as the legal cause of suspension, termination, suspension or suspension of execution, and lacks the applicable legal basis; If the parties reach a settlement agreement or need to cancel the settlement agreement for some reason, if the original execution procedure is not terminated or resumed, the implementation of the settlement system itself will be damaged. After all, the implementation of reconciliation is an important working system of the people's court. On this issue, first, there is a lack of unified understanding of whether to make a ruling on a settlement agreement case; Second, there is no unified legal norms, no rules to follow, and the application is chaotic, which is not conducive to the court's standardized management of enforcement cases. Under normal circumstances, many people who are executed are accustomed to using "behavior acquiescence" to suspend execution, rather than procedural suspension in the legal sense, without making a ruling or decision. If the person subjected to execution fails to perform or fails to fully perform the contract within the agreed time, the original execution procedure will be automatically resumed without making an order to resume execution; If the person subjected to execution fully performs the settlement agreement within the specified time, the agreement will be stored in the execution file as an annex and the case will be closed. The biggest advantage of this practice is that it is flexible and convenient, and it will not waste judicial resources. The biggest disadvantage is that it lacks the seriousness that the legal system should have and has little deterrent effect on the parties. The author thinks that, from the perspective of normative execution, the original judgment document that reached an execution settlement agreement should be suspended. If the person subjected to execution fails to fully perform the settlement agreement within the agreed time limit, the reasons for the suspension of execution shall be eliminated and the execution of the ruling shall be resumed, which is in line with the provisions of Article 211 of the Civil Procedure Law. If one party fails to perform the settlement agreement, the people's court may resume the execution of the original effective legal documents upon the application of the other party. If the person subjected to execution has fully performed the contents of the settlement agreement, the original ruling on suspension of execution may not be revoked. The settlement agreement shall be ruled invalid on the date of implementation, and the settlement agreement and performance results shall be subject to one volume, so as to give consideration to both legal seriousness and tolerance, be flexible and convenient, and save judicial resources. 3. Obstacles to "autonomy of the will" The first paragraph of Article 207 of China's Civil Procedure Law emphasizes that the implementation of reconciliation should fully reflect the "autonomy of the will" of the parties. How to accurately understand "autonomy of the will"? Although there is no relevant explanation in China's current laws, we can find relevant legal basis. For example, Article 4 of the General Principles of the Civil Law stipulates that civil activities should follow the principles of voluntariness, fairness, compensation for equal value, honesty and credibility, and Article 4 of the Contract Law stipulates that the parties have the right to voluntarily conclude a contract according to law, and no unit or individual may illegally interfere. Accordingly, it is not difficult to understand "autonomy of the will" as follows: the parties participating in civil activities enjoy complete freedom within the scope permitted by law, enter into contractual relations according to their own free will, set rights for themselves or assume obligations to others, and no organ, organization or individual may illegally interfere. However, the judicial practice is not completely like this: First, the expression of meaning is not accurate. Due to the differences in knowledge, experience, experience and legal knowledge between the two parties, the settlement agreement reached is not standardized in terms of waiver of rights, settlement target, performance time, performance method and effective conditions, and it cannot express its meaning objectively, freely and truly, which makes the content of the agreement vague; Second, the expression of meaning is arbitrary. The settlement agreement has no legal force, but is subject to moral constraints. After signing the settlement agreement, the parties can choose to perform or not to perform, and they can go back on their word at any time without being held accountable. The arbitrariness of expression determines the arbitrariness of expression. The third is to express meaning maliciously. In the name of reconciliation, some persons subjected to execution take advantage of the other party's eagerness to perform their rights and interests, forcing the other party to give up part of its creditor's rights, extend the performance period, change the performance method, and change the subject of execution. And take reconciliation as an expedient measure to tide over the difficulties in execution, so as to delay the execution time of the court or evade the performance of debts; The fourth is the expression of meaning. Individual executors have low professional ethics and are influenced by relationship cases, human cases or money cases, inducing and forcing the parties to agree to their pre-drawn implementation plans, suppressing the obligee to reduce the amount of the subject matter to be executed, or paying debts in kind, or extending the performance period. Ignoring the obligor's performance ability, threatening enforcement, forcing the signatory to agree to a settlement, suppressing the parties' expression of will, and so on. All these violate or fail to embody the "autonomy of the will" in the legal sense to varying degrees, which has become an important obstacle to the implementation of the reconciliation system in practice. 4. Dilemma of "Harmony but Difference" in Civil and Commercial Cases The people's courts take resolving contradictions, disputes and cases as their value orientation, strive to resolve social contradictions, build a harmonious and peaceful environment and promote social and economic development. For the implementation of reconciliation, we should first attach importance to "harmony" and actively guide the parties to reach a settlement agreement on the basis of equality, voluntariness, mutual understanding and mutual accommodation; Secondly, we should pay attention to "settlement", so that the agreements reached by the parties themselves can be fulfilled and the rights holders can realize their rights and interests. Harmony and solution are dialectical unity, harmony is the means, solution is the purpose, harmony can promote solution, and solution is beneficial to it. However, in practice, there is a common phenomenon that "harmony" is valued over "solution", which is related to the objectivity of "solution", that is, "solution" needs more wisdom and strength. The author believes that the main reasons for "harmony without understanding" are as follows: first, the person subjected to execution maliciously reconciled and resisted execution by means of reconciliation. In order to avoid performing debts, "harmony" itself is an illusion and "solution" becomes a castle in the air; Second, the settlement agreement lacks the premise and foundation for performance. For example, the content violates laws and regulations or social public order and good customs. Such "harmony" violates social values at the expense of laws and moral norms, and "reconciliation" becomes a rootless tree; Third, the content of the settlement agreement is unclear, and the understanding of the terms is inconsistent, resulting in ambiguity, "harmony" is vague, and "settlement" is a fog; Fourth, the settlement agreement itself does not give enforcement effect, and the binding force on the parties is very limited. They can go back on their word at any time without being investigated for legal responsibility, so they have no scruples about "harmony" and let "reconciliation" become arbitrary; Fifth, the person subjected to execution blindly pursues the settlement rate of the case, blindly promotes the reconciliation between the two parties, unprincipled makes the obligee give up his rights and interests, and ignores the performance ability and feasibility of the person subjected to execution. "Harmony" is the disharmony between the mouth and the heart, and "solution" becomes a kind of compulsion. 5. Is the court, the parties or the third party the initiator of the execution of reconciliation by the executive organ in an "awkward" position? The current law does not clearly stipulate. Judging from the existing legal provisions in our country, the executive organ should fully respect the disposition of the parties to their own rights and interests, that is, the parties' "autonomy of will" and should not participate in the formation of a settlement agreement. It can be seen that the current law completely purifies the formation process of the settlement agreement as the party's own business, which has nothing to do with the executive organ. What is the actual situation? In order to reduce the execution pressure or improve the execution rate of cases, the enforcement agencies often take various measures to urge the parties to reach a settlement agreement. That is to say, most cases that reach a settlement agreement have more or less penetrated the will of the enforcement agencies, such as actively starting the settlement procedure to avoid overdue execution, trying to decide to suspend the execution procedure to improve the execution rate of cases, and taking pains to do the work of creditors to reduce the difficulty of execution, so as to make them give up part of their rights and interests. There are also debtors who make requests to the executive authorities, hoping to reach a settlement agreement under the auspices of the executive authorities, so as to reduce their performance pressure or achieve the purpose of evading debts, and creditors who make requests, trying to help maximize benefits through the "operation" of the executive authorities. It can be seen that there is indeed a big gap between the current legal provisions and the actual performance. It can be said that the formation of the settlement agreement can not be separated from the initiation, organization and guidance of the executive organs in most cases. The executive organ acts as a mediator in civil litigation, and the formation process of the settlement agreement can show the "shadow" of the executive organ. However, in the final form of the settlement agreement, the executive organ will withdraw from the outside, and there is no sign of the executive organ's participation, forming the appearance of the parties' automatic settlement, which makes the executive organ in an "embarrassing" position. Contradicting jurisprudence with facts is obviously not in line with the spirit of legislation, and the consequences cannot be ignored. This will not only encourage the administrative organs to suppress reconciliation, but also affect the function of reconciliation and the construction and improvement of the settlement agreement system. This not only damages the legitimate rights and interests of the parties, but also damages the seriousness of the law and the authority of the people's court. Third, innovate the path of reconciliation. How to do a good job in case execution and reconciliation? This is a very heavy and complicated subject, which needs to be explored, summarized and improved in judicial practice. At present, some scholars have put forward many opinions and suggestions on the implementation of reconciliation, such as implementing the system of review and responsibility notification, clarifying the implementation effect of the settlement agreement, and conducting necessary review of the settlement agreement, which is undoubtedly of positive significance to the implementation of reconciliation. The author believes that the key to establishing a fair, efficient and perfect settlement agreement system is to start from the following aspects: 1, perfecting the legal system. Although the current reconciliation system in China has obvious functions, the existing problems are also very prominent, which are mainly manifested as being too principled, too simple and not strong in guidance, and it is difficult to meet the actual needs of implementation. The author believes that the best way to implement reconciliation is to take the road of refined, scientific and three-dimensional management, attach importance to the construction of reconciliation system, issue relevant judicial interpretations as soon as possible, improve reconciliation norms, refine reconciliation content, restrain the implementation of reconciliation behavior, uniformly implement system standards, and comprehensively promote the institutionalization, standardization and proceduralization of reconciliation work. 2. Confirm the validity of the agreement. Some scholars believe that the implementation of reconciliation is a legal act of the parties to dispose of their civil substantive rights within the scope of law, which is legally binding on both parties, and both parties must fully perform their contractual obligations. The author disagrees with this view: first, the formation process and content of the parties' settlement agreement are not all within the scope of legal provisions. On the contrary, many settlement agreements in judicial practice violate the legal provisions, do not belong to the category of civil legal acts, and certainly do not have legal binding force; Second, settlement agreements are mostly at the expense of creditors giving up their rights and interests. For example, the creditor gives up part of the creditor's rights in exchange for the debtor's performance according to the contract. Once the debtor defaults, why should creditors continue to bear the cost of giving up their rights and interests? This is obviously unfair to the obligee. The author believes that under the premise that the settlement agreement is legal and effective, if the creditor defaults, the court will confirm the agreement and urge it to be fulfilled; If the debtor breaches the contract, the creditor has the right to choose whether to apply for the enforcement of the original legal document or continue to implement the settlement agreement, and the debtor will not benefit from the settlement agreement or the creditor will increase the loss. 3. Introduce penalty for breach of contract. The main reason for the "no understanding of reconciliation" and the low implementation rate of settlement agreement lies in the existing settlement agreement system itself. First, it does not have legal enforcement, and completely depends on the debtor's automatic performance; Second, there is no punishment mechanism for those who violate the settlement agreement. For example, the creditor repents of the right to give up at any time and then withdraws it, and the debtor maliciously reconciles to avoid performing the debt. The current legal system is at a loss and it is difficult to make a difference. On the one hand, the "irresponsible" behavior of the parties to the settlement agreement has provoked the law and damaged the seriousness of the law; On the other hand, it will actually waste judicial resources to varying degrees, which is not conducive to improving the efficiency of execution. The author thinks that it is necessary and feasible to punish the cases that are "reconciled but incomprehensible" due to the reasons of the parties, and implement "penalty" to ensure "performance", such as taking measures such as judicial custody and fine, so as to increase the cost of breach of contract by the parties and minimize the phenomenon of "reconciled but incomprehensible". 4. The court presided over the settlement. The current enforcement settlement system emphasizes the active position of the parties, but ignores the role of enforcement agencies in the formation of settlement agreements. Its shortcomings are obvious: First, the settlement rate is low. There are conflicts of interest between the two sides themselves, which are often very antagonistic and lack a normal communication basis. In this case, how many parties can initiate a settlement agreement on their own initiative? Second, the implementation of the settlement agreement is poor. Due to the lack of professional guidance, the parties have reached more or less settlement agreements, or there are some problems, such as violation of laws and regulations, incomplete expression of will, vague understanding of terms, etc. It directly affects whether the settlement agreement can be effectively fulfilled. It is suggested that the roles of the parties and the people's court should be "exchanged", that is, the parties themselves should settle, and the court should preside over the settlement, so as to highlight the leading position of the people's court in implementing the settlement. After the role "exchange", it will also bring new positive changes, such as increasing the credibility of the parties to the settlement agreement, improving the rate of reaching the settlement agreement, improving the quality of making the settlement agreement, and reducing the problem of "difficult execution" of the case, which is worth trying in judicial practice. 5. Improve the assessment methods. From the perspective of execution management, the assessment method directly affects the quality of case settlement and the progress of case execution. Some courts take the execution of settlement as the way to close the case, and even close the case on the basis of reaching a settlement agreement, so as to improve the settlement rate and the number of cases executed, and make settlement for closing the case. Although the case is closed, the matter is gone, which deviates from the guiding ideology of the people's court of "enforcing the law for the people", and its direct consequence is to harm the interests of the obligee. The author thinks that the assessment of settlement agreement should take the actual implementation effect as the assessment index, and downplay the assessment of settlement rate and quantity, so as to establish a benign implementation assessment mechanism and promote the healthy operation of settlement agreement.