摘要
基于非讼程序不能妥善处理具有强烈对抗性、复杂性的不当执行实体争议的致命缺陷,以及案外人执行异议程序不仅没有提高执行效率,反而成为了案外人拖延执行的合法途径的实践效果,关于案外人执行异议与案外人执行异议之诉之间关系的程序安排,无论是异议前置模式还是自由选择模式均不具有合理性。其实,我国法上的案外人执行异议程序,罗马法上的第三人对扣押的异议程序,与德国理论上的分段式执行救济程序,均未实现加速审理进程以及全面保护案外人利益的目的。未来的《民事强制执行法》应当采取直接起诉模式,严格区分因违法执行行为引发的程序争议与因不当执行行为引发的实体争议,构建程序上的执行救济方法与实体上的执行救济方法泾渭分明的双轨执行救济体制。
The relationship between the objection against the execution by the outsider and the lawsuit against the execution by the outsider has always been a controversial issue in the legislative process of the Civil Enforcement Law of China.Lawmakers have been wavering on whether to adopt an objection preposition mode,a direct prosecution mode or a free choice mode.The Civil Enforcement Law(draft)drafted by the Supreme People's Court in November 2022 changed the legislative thinking of direct prosecution mode in the past two years and suddenly returned to the objection predisposition mode.The main differences among the three models are:first,whether the executive agency can review the substantive disputes caused by the improper execution;second,whether the non-litigation procedure can handle the substantive disputes caused by the improper execution;third,whether the objection against the execution by the outsider has the effect of improving the execution efficiency.Although it does not violate the principle of separation of trial and execution that an executive judge examines the objection against the execution by the outsider based on the power of enforcement adjudication,the examination standard of the objection against the execution by the outsider is repeated with the ascertaining standard of liability property and the trial standard of the lawsuit against the execution by the outsider,and the system design is overlapping.Furthermore,the exercise of the power of enforcement adjudication is based on the non-litigation procedure of objection against the execution procedure.Although the lawsuit against the execution by the outsider has the potential to be non-litigious,non-litigation procedures cannot properly deal with complex substantive disputes caused by improper execution of the executive agency because of the strong adversarial nature that is a typical feature of such disputes.In practice,the objection against the execution by the outsider does have the effect of interception before the lawsuit.However,it does not improve the efficiency of execution,and becomes a legal way for outsiders to delay execution and a hotbed of false objections.Therefore,neither the objection preposition mode nor the free choice mode is reasonable.In fact,the third party objection procedure in Roman law and the segmented execution remedy procedure in German law have long shown that the objection predisposition mode and free choice mode cannot accelerate the process of trial and fully protect the interests of outsiders.The procedures of the third party claiming chattels in the United Kingdom and the United States have inherent deficiencies in the trial period and so on.In Germany and Japan,the object of objection expands from procedural illegal act to substantive illegal act,which is very limited.Therefore,it cannot confirm the legitimacy of objection predisposition mode and free choice mode.The objection against the execution by the outsider was reasonable in history,but it is not legitimate today.As for the relationship between the objection against the execution by the outsider and the lawsuit against the execution by the outsider,the Civil Enforcement Law should adopt the direct prosecution mode,and construct a dual track enforcement relief system which is distinct from the procedural and substantive enforcement relief methods.
出处
《当代法学》
CSSCI
北大核心
2024年第4期121-133,共13页
Contemporary Law Review
基金
2020年国家社会科学基金项目“民事强制执行法基础理论研究”(20BFX082)的阶段性成果。
作者简介
庄诗岳,中国政法大学民商经济法学院讲师,法学博士。
