执行债权的法理基础与法律构造——兼论代位执行法理之缺陷

On the Theoretic Foundation and Legal Structure ofForcible Execution to the Creditor's Rights——And on the drawbacks of execution of subrogation

执行债权制度是指对被执行人所享有的债权的执行,因其与实体法上债权人代位权制度在法律构造上的相似性而被我国学者称为代位执行,但由此却带来了不少理论上的困惑。以实体法中代位权的法理解释执行债权制度的法律构造时,执行根据、执行标的等基本的理论问题均难以得到合理解释。执行债权制度有其明确的法理基础和构造,与债权人代位权制度并无任何理论上的牵连。

The regulations of forcible execution to the ereditor＇s rights are mainly designed to control the executive measures to the creditor＇s right of the executed. For the reason that the legal structure of this executive approach is very similar with the right of subrogation in contract law, many domestic scholars use the concept of execution of subrogation to refer to the execution to creditor＇s rights. With this concept being discussed increasingly, theoretic confusions come next at the same time. When people try to use the theory of subrogation to interpret the legal structure of forcible execution to the creditor＇s rights, they encounter much theory hindrance. Some basic concepts like the grounds of execution and the objectives of the execution can hardly get a reasonable interpretation. According to the analyses in this paper, the system of execution to creditor＇s rights has its own theoretic foundation and legal structure, which has nothing to do with the right of subrogation in civil law.