诉讼外“和解契约”的效力与合伙债务的混同

The Confusion between Effect of "Reconciliation Contract" out of Litigation and the Debts of the Partnership

二审过程中,双方当事人(及案外人)于诉讼外所达成的"和解协议",应定性为所谓的"和解契约",并适用《合同法》总则的规定。达成和解协议的同时又撤回上诉的,原告既可按一审判决申请强制执行,也可选择另行起诉,要求对方按和解协议约定履行合同义务。债权与债务同归于一人,构成"混同",债归于消灭。就合伙债务,各合伙人均为连带债务人,当连带债务人中的一人,因混同而使其他债务人同免其责任的,可请求其他债务人各自偿还其本应分担之部分。

In trial process, the agreement settled by the parties（and outsiders in litigation） should be characterized as so-called ＂reconciliation agreement＂, and it applies to the provisions of the general rules of Contract Law. When the composition contract is made and the plaintiff withdraws his appeal, the plaintiff of the preliminary trail could apply compulsory execution according to the judgment of preliminary trail, or choose to demand the other party to fulfill its contractual obligations under the composition contract. Creditor＇s rights and liabilities are assumed by the same person, which is called ＂confusion＂ and the debt is eliminated. As to the partnership＇s debts, each partner is the joint debtor. When one of the debtors, due to ＂confusion＂, causes the other debtors free of their responsibility, he has the right to request the other debtors repay their share parts.