论文部分内容阅读
第七届全国人民代表大会第四次会议,在对《中华人民共和国民事诉讼法(试行)》作了重要修改后,于今年4月9日颁布并施行了《中华人民共和国民事诉讼法》(以下称民事诉讼法)。为适应改革开放和发展社会主义商品经济的需要,在审判程序编中增加了一种独立而又特殊的程序——督促程序。本文拟就该种程序谈谈自己的一孔之见,以求教于同行。 一、督促程序的概念 民事诉讼法第189条规定:“债权人请求债务人给付金钱、有价证券……,可以向有管辖权的人民法院申请支付令。”从这一规定可以看出:民事诉讼中的督促程序是指债权人为实现自己的合法权益,请求债务人给付一定数量金钱、有价证券,而向人民法院申请并由法院发出支付令所适用的程序。例如甲、乙二人之间存在着债权债务关系,债务人乙已过履行期限仍不履行义务,债权人甲就可以向人民法院申请支付令,督促乙履行义务。人民法院审理这类案件所适用的程序就是督促程序。这种程序是一种特殊的审判程序。程序的发生以债权人的主张为基础。法律设定这种程序,其目的是寻求诉讼的“经济”,即节省人力、物力和时间,及时实现债权人的民事权利。
The Fourth Session of the Seventh National People's Congress promulgated and implemented the Civil Procedure Law of the People's Republic of China on April 9 this year after making important revisions to the Civil Procedure Law of the People's Republic of China (Trial Implementation) Hereinafter referred to as Civil Procedure Law). In order to meet the needs of reform and opening up and the development of a socialist commodity economy, an independent and special procedure has been added to the procedure of trial - the procedure of supervision. This article intends to talk about this kind of procedure one's own opinion, in order to teach in the peer. First, the concept of supervision procedures Article 189 of the Code of Civil Procedure provides: “creditors request the debtor to pay money, securities, ... ... may apply to the people's court with jurisdiction for payment orders.” From this provision we can see: civil litigation The supervisory procedure refers to the procedure that the creditor applies to the people's court and issues the payment order by the court for the purpose of realizing his legal rights and requesting the debtor to pay a certain amount of money and securities. For example, there is a relationship between creditor's rights and debts between the two parties. When the debtor B has not fulfilled his obligation, the creditor A can apply to the people's court for an order of payment and urge B to fulfill his obligations. The procedure that the people's court deals with such cases is the procedure of supervision. This kind of procedure is a special kind of trial procedure. The procedure is based on the claims of the creditors. This procedure is set by law. Its purpose is to seek the “economy” of litigation, that is, to save manpower, material resources and time and realize the creditor's civil rights in a timely manner.