判决执行力主体范围的扩张——以实体权利转让与执行权利的获得为中心

Extension of the Scope of Judgment Personas: Centering on Transfer of Substantive Right and Acquisition of Enforcement Rights

通过诉讼程序已经得以确定的实体权利在执行开始前以及执行程序中,能否在权利人将其权利转让给受让人后,使受让人因此而获得执行申请权以及其他执行权利,这是一个司法实践中有争议的问题。应当说,受让人在获得实体权利的情况下,就享有相应的程序权利。这种程序权利的获得是基于实体权利主体的变更,而非程序权利的转让。它是执行力主体范围扩张其权利主体变更后,应采取措施保证强制执行的正当性。

In case that a substantive right is confirmed in an action but assigned before or in the process of enforcement, whether the assignee therefore acquires the right to apply the court for enforcement of the other procedural right is still an arguable problem in judicial practice. This paper maintains that where judgment or for the assignee has acquired the substantive right, he/she should accordingly enjoy the procedural right. The acquisition of such a procedural right is justified by the change of the persona enjoying the substantive right but not by the assignment of the procedural right. Based on the justification of extension of the scope of judgment persona, this paper further details where the right is transferred how to follow the legitimate enforcement procedure.