二审和解后的法理逻辑:评第一批指导案例之“吴梅案”

The Legal Logic after the Reconciliation in Second Instance:Reviewing the First Batch of Guide Cases of the “Wumei Case”

二审和解后撤诉与撤回上诉皆有可能,但撤诉应受更多限制。一审判决生效后法院应依请求按法定条件立案执行,协议未履行不是立案条件。既判力"标准时"后达成的和解协议可变动判决确定的民事债权,但不能冻结或取消执行力,法院应依请求判决排除原判的部分执行力。和解协议具备成立要件和有效要件即为有效,与是否违约无关。法律已规定违约责任,不必也不应援用诚信原则。对债务人的实体异议应无选择地依实体审理程序处理。由于未能把握前述法理,"吴梅案"出现了多个问题:混同撤诉与撤回上诉,违法设置执行立案条件,错误理解生效判决和和解协议的关系,异议处理程序欠缺正当性,类推适用《民事诉讼法》第207条,裁判要点与裁判理由不符,案例名称不当。

Plaintiff also can recall his claim with the consent of defendant in second instance. If judgment has not being restricted, it must be enforced according to the application. The settlement agreement after standard time of res judicata, can change creditorg rights determined by court, but cannot restrict its enforce- ment power, court should does so based on the application. Settlement agreement＇ s taking effect has nothing to do with breach of contract. Law has ruled about liability for breach of contract, so good faith doctrine need not be applied. Substantial dispute must be tried with substantial procedure. Being unacquainted with the a- bove legal principle, Wumei case has seven deficiencies illegally set out new requirement for enforcement of judgment, misunderstand the relationship between binding judgment and settlement agreement, analogize ar- ticle 207th of civil procedure law, confuse recall of complaint and appeal, key point does not correspond with reason for judgment, name of the case disaccord with its issues.