执行和解协议相关问题探析——兼评我国现行立法的不足及完善

Theoretical Analysis of the Enforcement of Settlement Agreement—— Comment on Defect and Improvement of China's Current Legislation

执行和解协议的性质、效力和救济一直是理论和实务界颇具争议的问题,三者之间在逻辑上相互关联,执行和解协议应该是一种具有附随诉讼行为性质的私法契约,这决定了其在效力和救济上都应更加尊重当事人的权利和意志,即执行法院应该主要依当事人的申请采取相应的措施,以此决定执行程序的运行。

The nature, validity and relief of the enforcement of settlement agreement are always controversial problems in both theoretical and practical fields, which are always related to each other logically. The enforcement of settlement agreement should be deemed as a private law contract with collateral litigious behavioral nature, which determines that it should better respect the parties ＇ rights and will in terms of validity and relief, i.e., the execution court should mainly take corresponding measures and determine the process of the execution of the cases according to the parties＇ will and choices.