强制执行中财产豁免制度研究

Research on Property Exemption System in Enforcement

责任财产是指被执行人用以承担全部清偿责任的财产,包括动产、不动产或其他财产权益。进入执行程序后,被执行人应当以其全部财产对债务承担责任,但是基于维护被执行人的基本生存权,或基于社会公序良俗等,法律应当规定被执行人享有在一定财产和时间范围内免受强制执行的权利,这就是执行财产豁免制度。在强制执行程序中确立执行豁免制度,是一个国家对被执行人基本人权的尊重,也是"放水养鱼"鼓励被执行人良性发展的必然需要。域外不少国家和地区均对执行豁免制度作出了比较详细的规定。我国法律及司法解释仅对执行豁免制度作了一些原则性规定,缺乏可操作性,实践中对此裁判的尺度也不一,一些执行不当行为导致了执行工作陷入被动局面,因此很有必要对执行豁免制度进行讨论,以便统一认识、准确执行。在分析、借鉴域外执行豁免制度的基础上,对我国现行执行豁免规定进行梳理,以探讨我国设立执行豁免制度的可行性。

Responsible property refers to the property that the executor is responsible for the full liquidation liability, including movables, real estate or other property rights and interests. After entering the execution procedure, the executor shall take responsibility for the debt with all its property, but based on the maintenance of the basic right of existence of the executor, or based on the public order, the law should stipulate the right of the executor to be exempt from compulsory execution in a certain property and time range, which is the compulsory exemption system. The establishment of an exemption system in the enforcement procedure is a country s respect for the basic human rights of the executor and the necessary need for the “release water to save fish” to encourage the virtuous development of the executor. Many countries and regions have made detailed provisions on the exemption system. The legal norms and judicial interpretations of our country have made some principled provisions on the exemption system, lack of operability, and the scale of the referee is different in practice. Some erroneous execution leads to the passive situation of execution, so it is necessary to discuss the exemption system so as to realize the unified understanding and execute accurately. On the basis of analyzing and drawing on the exemption system from foreign countries, this paper will sort out the existing exemption regulations of our country, so as to discuss the feasibility of establishing the exemption system in our country.