论我国执行救济制度的缺陷与完善

On Defect and Perfection of Our System of Executive Remedy

我国执行救济制度仅有案外人异议制度,程序上的执行救济和债务人实体上的执行救济制度缺失,现行的执行异议制度定位不明。以程序的方法处理实体争议问题,执行异议制度处于一种虚无状态,对第三人利益保护欠周,似有重实体公正轻程序公正、过度保护债权人而忽视债务人和第三人利益保护之嫌。文章提出必须坚持程序救济和实体救济并重,公平保护执行当事人和利害关系人的合法权益,充分发挥执行救济制度的应有功能。

In our executive remedy, there is an outsider’s dispute.The procedural remedy and substantive remedy for debtor are in no existence. The aim of executive dispute is ambiguous and substantive dispute is resolved by procedure. In fact, the function of executive dispute is weak. It is imperfect to safeguard outsiders interests. It seems that substantive fairness and creditors interests are emphasized while the procedural fairness and debtors or outsiders interests are ignored. Therefore, the procedural and substantive remedy can be equally important. In order to protect fairly for the right of parties and outsiders, we should complete the executive remedy in our country.