裁判执行权的再思考——从权力的个性考察

Thinking on judge's powery of enforcement --Investigating from the individual character of power

“执行难”是司法权威受到损害的一个主要因素,解决“执行难”也是当前司法改革的目标之一。而对执行权性质的正确认识是建立合理执行体制的前提和基础。以国家权力的分工与制约理论为基础,从行政权和司法权性质上固有的差别来看,执行权本质上是一种行政权,并不具有任何司法权的特性。由法院行使执行权不仅不会更好地解决“执行难”问题,反而会加剧法院的“行政化”色彩。针对这种状况,合理的解决方法是将执行权从法院剥离出来,交由行政机关行使。

The matter of execution of judgement is one of main factors which weaken the judicial authority, and how to solve the matter challenges our judicial reform. The establishment of feasible executive body should be based on the real understanding of the character of enforcement power. We hold the opinion that the power of enforcement essentially is an executive power without any feathers of judicial power. The opinion is drawn out through analysis of the clear distinction between executive power and judicial power, underlying on the theory of separation of powers. It is undue for the court to hold the enforcement power, for it not only can't solve the matter of execution of judgements, but also will heat the bureaucratization of judicature. It may be an enforceable scheme that separates the power of enforcement from the court , instead of granting it to an administrative department.