论民事执行异议之诉制度的构建

On Establishment of the System of Lawsuit against the Execution

民事执行异议之诉是保障债务人或第三人的实体权利在执行程序中不受侵害的重要制度,可分为债务人异议之诉和第三人异议之诉,其目的在于全部或部分排除执行依据的执行力或排除对特定标的物的执行。我国现有的异议之诉的立法缺陷在提出异议之诉的主体、异议之诉的审查程序、审理结果、对异议之诉的救济和监督等方面均有体现。在对执行救济制度的程序价值全面认识之后,应科学合理地构建我国的民事执行异议之诉制度,对债务人或第三人的实体权利给予全面的保护。

Lawsuit against the execution, an important system which protects the debtor＇s or the third party＇s substantive rights from encroachment in execution. It can be classified into the debtor＇s opposition and the third person＇ s appeal; it aims at completely or partially excluding the power of enforcement basis or the execution of special objects. Chinese existing legislation flaw is that lawsuit against the execution embodies itself in many fields such as the main body, upon the procedure, legal consequences, remedy and supervision of examination. Having a comprehensive understanding of its procedural value, we should establish the system of lawsuit against the execution scientifically and reasonably to protect the debtor or the third party＇ s substantive rights.