我国债务人异议之诉制度的确立及其构造

The Establishment and Construction of the System of Debtor Dissidence Lawsuit in China

我国民事诉讼法上虽有多种救济被执行人实体权益的制度,却无法应对"解除原执行依据执行力"的问题,也不能解决被执行人的相关实体争议。以执行异议制度处理实体争议,会偏离该制度救济程序性权利的功能,违反"审执分离"原理;再审之诉作为纠正错误裁判的补救程序,无法解决非因裁判引发的实体问题;另行起诉的根本缺陷在于无法排除执行依据的执行力。我国有必要引入大陆法系国家专门为救济被执行人实体权益而设立的债务人异议之诉制度,以更加有效、周全地保障被执行人的实体权益。作为一种因执行阶段出现实体争议而设置的审判程序,债务人异议之诉要适度、合理地发挥作用,需要特别而精致的程序构造。

Although there are various systems to remedy the rights and interests of the executed people in China′s civil procedure law, it cannot cope with the problem of "excluding the execution of the original execution basis", nor can it solve the related entity dispute of the executed person. Dealing with entity disputes by execution behavior objection will deviate from the system′s function of remedy procedural rights and violate the principle of "separation of trial and execution". As a remedial procedure to correct the wrong refer ee, the retrial procedure cannot solve the entity problem caused by the non-judgments. The fundamental flaw of the separate lawsuit is that the execution of the execution basis cannot be ruled out. It is necessary for China to introduce the system of debtor dissidence lawsuit established by the civil law countries for the remedy of the rights of executed entities, so as to protect the rights and interests of the entity of executed people more effectively and comprehensively. As a trial procedure set up for entity disputes during the implementation phase, the lawsuit of debtor dissidence requires a special and sophisticated program structure to play its role properly and reasonably.