附对待给付义务的诉讼表达与执行法构造

Expression in Litigation and Construction in Compulsory Execution Law of Obligation with Consideration

基于程序法与实体法的多层次内在关联,存在延伸并因应附对待给付义务的三种技术构造。在执行力发生的层面,学说并未认识到驳回请求判决的预先遮断功能及其积极效应,且误解了其实体法基础和程序效率。鉴于法院易于忽视抗辩权的现实,我国法上同时履行抗辩权与附对待给付判决并无绝对关联的立法选择是妥当的。在执行力具体化的层面,基于对比较法的错位继受和实质探讨的欠缺,学说误将附对待给付判决作为附条件执行依据。在执行开始的层面,已被承认的附对待给付判决中仅有债务人的给付义务发生执行力。债权人的履行或提出给付是强制执行开始的要件,应不限于通过公文书或公证书证明和由执行机构转交对待给付,而且存在通过执行和解变更的可能性。其法律救济为执行异议和复议,且债务人不得在被执行人异议之诉中主张同时履行抗辩权。

Based on the intrinsically connections that the substantive law gets with the procedure law and compulsory execution law on multiple levels,there are three possible technical constructions aiming to extend and respond to the obligation with consideration in the substantive law.At the level of compulsory execution force occurrence,the doctrine does not recognize the positive effect of the prejudgment function of the judgment of dismissal,and it misunderstands the basis of substantive law and procedural efficiency.Based on the reality that Chinese judicial practice tends to ignore the debtor’s right of counterplea,it is appropriate that Chinese law does not make the legislative choice of absolute correlation between the right of concurrent performance counterplea and the judgment with consideration.At the level of specificity of compulsory execution force,based on the misplaced succession of comparative law and the lack of substantive discussion,the doctrine mistakenly treats the judgment with consideration as a basis for conditional enforcement.At the level of commencement of enforcement,judicial practice has recognized judgments with consideration,in which the debtor’s obligation solely is enforceable.The creditor’s performance or offer of performance is an element of the commencement of enforcement but not a prerequisite for its application.In Chinese law,the way to prove performance is not limited to public documents or notary certificates and delivering the consideration by the compulsory enforcement agency.Besides,there is the possibility of modifying the consideration by reconciliation in compulsory enforcement.The legal remedies for the commencement of enforcement elements are objection and review to compulsory execution,and the debtor may not assert the counterplea of concurrent performance in the litigation of against the execution by the debtor.