试论财产保全程序中被申请人及案外人权益保障

Study of the Rights Protection of the Respondent and Case Stranger in Property Attachment Procedure

财产保全制度以保障将来依法作出的生效裁判文书能够顺利执行为初衷,但"申请人即为正当权利人"的预设前提在临时保障申请人权利的同时也潜在地给被申请人及案外人带来了权益受损的隐患。基于平等保护当事人权益原则,财产保全程序中被申请人及案外人的权益急需相应法律予以保障。纵观财产保全程序的运行进程,程序启动的依申请主义,程序救济中的异议制度构建以及检察机关的外在监督无疑是被申请人及案外人权益保障的有效突破口。

The property attachment system aims to guarantee the final implement of the verdict that will be made in the near future. However, the hypothesis that the applicant is the person whose rights should be protected may protect the applicant temporarily, as well may bring the respondent and case stranger potential damages. Based on the idea that both parties should be protected equally, the rights of the respondent and case stranger badly need to be protected by the law. Considering the whole procedure of the property attachment, process starting by applicants, establishment of the objec- tion system and the supervision of the prosecutor will undeniably make effective contributions to the rights protection of the respondent and case stranger.