督促程序的设计理念:诉讼还是非讼

The Design Idea of Payment Procedure: Litigation or Non-litigation

大陆法系的督促程序同时包含诉讼与非诉两种因素,落实到制度设计则表现为诉讼与非讼两种理念,分别以法国和德国为典型。法国的督促程序设计,虽是非讼的初衷,却有类似诉讼的开端、过程和结局,实行实质审查、当事人进行主义并赋予程序结果既判力,平行追求效率和公正,往往顾此失彼。德国的督促程序,是非讼的初衷,亦是非讼的过程和结局,自始至终追求效率,实行全程电子化操作,保持与诉讼程序、执行程序的适当距离。我国的督促程序偏重于诉讼理念,更重视公正价值,未来可通过制度微调达到效率、公平与案件数量的平衡发展。从历史维度看,诉讼化督促程序可谓督促程序的前生,与传统诉讼相伴而生,非讼化督促程序可谓督促程序的后世,正在推动现代诉讼迈入电子化时代。

The payment order procedure in continental legal system contain litigation factors as well as non-liti- gation factors. There are two design ideas in different countries, one is the litigation idea, France is the typical coun- try, another is the non-litigation idea, and Germany is the typical country. The payment order procedure in France have the non-litigation objective but litigation beginning, process and end, which want to balance justice and effi- ciency by implementing substantive review, litigant principle and giving the procedural result res judicata, but face the conundrum of neglecting one or other. The payment order procedure in Germany pursuit the only value of effi- ciency from beginning to end by non-litigation procedure, electronic operation in the whole course and keeping ap- propriate distance with other procedure. The litigation idea and the value of justice is emphasized more by the pay- ment procedure of China, which should be modified slightly in the future to balance the efficiency, justice and casel- oad. From the historical dimension, the litigational payment order procedure closing to the traditional litigation is the prelife of payment order procedure, and the non-litigational payment procedure is the tomorrow of payment procedure which is moving the modern litigation system into electronic age.