申请执行期间所达成还款协议之效力分析

An Analysis of the Efficacy of the Returning Agreement Made in the Term of Application for Executing Judgment

最高法院执行办公室以“批复”的形式确认在申请强制执行期间,双方当事人所达成的还款协议具有确立新的债权债务关系的效力,一方可以另一方未履行该协议提起诉讼。由于批复本身缺乏普适性效力,且内容不够完善,导致实践中各地作法不一。赋予还款协议确立新债权债务关系的效力有其切实的必要性和充分的理论基础,实践操作中,受诉法院应当严格依照法理,在尊重判决效力的前提下,区分前诉不同结案方式采用相应的审理程序。

According to the “Official Written Reply” made by the Executive Bureau of the Supreme People＇ s Court, the returning agreement has the efficacy to establish a new relationship of debt. However, there exist inconsistencies in implementation of the “Reply” due to its constraints. This paper argues that if it is to acquire efficacy to establish a new relationship of debt, the returning agreement must be of genuine necessity and of adequate theoretical foundation. In practice, the court should adopt corresponding hearing procedure according to the different ending manner of the former case and in the premise of the deference to the efficacy of judgment.