恢复执行抑或另行起诉——以执行和解规定第9条为中心法律实务园地

Resumption of Execution or Separate Lawsuit——Focusing on the Implementation of Article 9 of the Settlement Regulations

《最高人民法院关于执行和解若干问题的规定》(以下简称《执行和解规定》)第9条应按实体问题通过诉讼程序处理,程序问题通过非诉程序处理的逻辑解释。执行前和解协议是民事合同,其法律效果是债权人为自己创设一个限制或者阻却强制执行请求权的义务,因此,在债权人不履行时,债务人可以起诉债权人实际履行,当债务人不履行时,债权人可以申请强制执行原生效裁判文书;处分型执行和解协议是诉讼合意,其本身不具备可争议性的实体权利义务内容,因此债务人不履行时,债权人只得恢复执行;创设型执行和解协议在结构上存在原生效裁判文书确定的实体权利义务部分和超越原生效裁判文书确定的实体权利义务部分等两部分内容,如果后者具有相对独立的私法属性,债务人不履行执行和解协议时,债权人即可同时享有恢复执行和另行起诉的权利。《执行和解规定》第9条规定的"不履行",应当参照《民法典》第577条的规定,理解为债务人不履行义务或者履行义务不符合约定。

Article 9 of the"Provisions of the Supreme People’s Court on Several Issues Concerning the Implementation of Settlement"(hereinafter referred to as"Regulations on the Implementation of Settlement")explains substantial issues shall be dealt with through litigation procedures,and procedural issues should be dealt with through through non-litigation procedures.The pre-execution settlement agreement is a civil contract,the legal effect of which is that the creditor creates an obligation to restrict or hinders the enforcement of the claim right.Therefore,when the creditor fails to perform debt-service obligations,the debtor can sue the creditor for specific performance.When the debtor fails to perform settlement agreement,the creditor can apply for enforcing the original effective judgement document;the disciplinary execution settlement agreement is a lawsuit agreement,which does not have controversial content of substantive rights and obligations,so when the debtor fails to perform it,the creditor has to resume execution;the creative execution settlement agreement mainly contains two parts in terms of structure:the specified substantive rights and obligations of the original effective judgement document and the part going beyond the contracted substantive rights and obligations as determined by the original effective judgement document.If the latter has a relatively independent private law property and the debtor fails to perform the settlement agreement,the creditor can enjoy both resumption of execution right and separate lawsuit right.The"non-performance"specified in Article 9 of the"Regulations on the Implementation of Settlement"should refer to the regulations of Article 112 of the Contract Law and be understood as the debtor’s failure to perform the obligation or the promises not complying with the obligation.