初探债权执行程序的理论基础——执行名义欠缺的质疑与收取诉讼的构造尝试

A Probe into the Theoretical Foundation of Debt Enforcement Procedure: Challenges on the Lack of Enforcement Title and Construction Trial of Recovery Process

债权执行的正当性来自于债务人用于一般担保的责任财产,执行标的并非债权标的物,而是指向给付的债权。执行名义缺失下的债权执行不仅未能从诉讼法理论中获得正当化依据,而且执行效率原则由于悖离权利外观也颇受怀疑。有关执行债务人对第三人的债权执行程序,可分为扣押程序(冻结裁定)与变价程序(履行通知)。后者虽使执行债权人享有收取债权的权能,却不能启动对第三人的执行程序。若第三人拒绝向执行债权人履行债务,后者虽可借助《合同法》第73条代位权来提起收取诉讼,但两者之目的、构成要件、法律效果都有着显著的区别,应根据制度目的分别建构。

The enforcement of the claims is not based on the object of performance, but on performance it- self, which is also part of the liability of the debtor. The enforcement on the lack of enforcement titles cannot be justified by the theory of procedure. Furthermore, its efficiency against the theory of Rechtsschein is also doubted. The enforcement of claims can be divided in two parts ： attachment and utilization. Although the cred- itor is entitled to the levy, he is not entitled to apply for the enforcement to the third party debtor. If the third party refuses to perform the debt, the creditor may use the right of subrogation under Article 73 of the Contract Law to bring the litigation, but its purpose, constituent elements and legal effects have significant differences and should be constructed separately according to the system purpose.