停止侵害判决及其强制执行 以规制重复侵权的解释论为核心

On the Permanent Injunction and its Enforcement From the Perspective of the Regulation of Repeating Infringements

停止侵害判决在我国司法实务中经常出现,有必要从解释论上加以展开。停止侵害判决对应停止侵害请求权,其主要特点在于指向未来的行为。如果不能直接扩大该请求权的范围,也可以通过诉讼法上对相关请求和判决主文的解释达到相似效果。在重复侵权面前,需要明确执行中给付判决的禁止范围,只要将来出现的行为与生效判决所禁止的行为完全相同、在类型上相同或者在实质上相同,就被生效判决禁止。目前我国对新的事实的理解值得反思,应当重新认识对执行终结后排除妨害规则的适用。停止侵害判决需要通过间接执行方式执行,比较法上分别存在罚款和拘留模式及支付强制金制度两种模式。我国应当重新解释目前罚款和拘留规则,完善并行适用的迟延履行金制度。

Permanent injunction is released in legal research it from the perspective of legal interpretation. practice in China commonly and it is necessary to The basis of this kind of judgment is the material right to forbid some behavior, which could be characterized by its nature of affecting actions of parties in the future. If it is impossible to extend the scope of this substantial right directly, we could still rely on the procedural institutions to achieve similar results. The interpretation of a claim together with the oper ative parts of a judgment is in this sense highly relevant. In order to prevent repeating infringements, the forbidden behaviors are supposed to be clarified in the enforcement proceedings as well, which refers to the specialty of the subject matter of the permanent injunction. Specifically, the identical action, the ac tion which is sharing the same type with the condemned action, as well as the substantially same action have to be covered by the permanent injunction. The currently prevailing understanding of new facts after the trial is on the contrary supposed to be reconsidered. Moreover, the special rule for the obstruction of the enforcement of judgment after the enforcement itself may not be adopted in case of the permanent in junction. Finally, the indirect enforcement is suitable for the permanent injunction. Since there are a mod el of making fine coupled with putting the debtor into custody and a model of charging compulsory dama ges in various legal traditions, the mixture of these two models in China should he improved and devel oped.