| In China, the recovery enforcement system on one hand deviates from the legislative intention of civil procedure legislation, leading to such problems as the procedural structure of "integration of trial and enforcement" and the permission of instituting a separate action, and, on the other hand, originated in the traditional inquisitorial system and, as a result, needs a thorough reform both in basic theory and in institutional structure. Compared with other remedies in property enforcement, the recovery enforcement system has obvious advantages, such as being an economic, efficient and complete way of dispute resolution. Therefore, how to transform the operational mode of recovery enforcement from an inquisitorial one to an adversarial one to retain its function and advantages while at the same time satisfying the need for the development of civil litigation in the new era has become an important topic to be discussed and a major question to be answered in the formulation of the Civil Enforcement Law. As for the construction of the concrete system, rules on the debt of unjustified enrichment should be taken as the basis of the system of recovery enforcement and defined as substantive litigation norms. The procedure of separating trial from enforcement should be adhered to and the permission for the institution of a separate action should be excluded. The system of recovery enforcement should be stipulated in the Part of "Trial Procedure" in Civil Procedure Law, and a judgment-explaining procedure should be provided as well. |
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