摘要
我国现行的《民事诉讼法》第235条第五项规定,在自然人作为被执行人的案件中,裁定终结执行的依据是该被执行人“生活困难无力偿还借款,无收入来源,又丧失劳动能力”。事实上,这一条并不具有前瞻性,同时在实践中又由于其前瞻性的缺乏,导致许多执行法院在具体的案件中适用此条有困难,仅对类似案件裁定予以“终结本次执行程序”。这种无奈之举不但于法无据,而且是对终结执行本身目的的违背。
Subsection 235.5 of the Civil Procedural Act of the PRC provides that, while the judgment debtor is a natural person, only by reason that the debtor ＂lives a poor life and is unable to pay off the debt, he/she has no income and is disabled＂ can the execution be terminated. Indeed, this provision is without perspective nature and has resulted in many difficulties in specific cases. What a court can do is barely to render a decision to ＂end this ex- ecutive procedure,＂ which is not only without legal support, but also contrary to the original aim of the executive procedure. In consideration of building a natural person bankruptcy system and equalizing the status of the natural person and the legal person in the market economy, this author urges the establishment of such a system, amendment of Subsection 235.5 of the Civil Procedural Act of the PRC, and restraint of the use of ＂ending the execution＂ and ＂ending this executive procedure. ＂
出处
《西南政法大学学报》
2006年第3期38-42,共5页
Journal of Southwest University of Political Science and Law
