父债何以子还——失信惩戒连带责任的理论基础及制度完善

Why A Son Should Pay His Father's Debts—The Theoretical Basis and System Improvement in the Joint Liability System of Punishment for Discredit

作为失信惩戒制度的重要内容之一,失信惩戒连带责任制度在实施过程中使民事执行效率得到了显著的提升。然而在具体实施过程中,失信惩戒连带责任因涉及到与债权无关的第三人引起社会的广泛讨论。用债权物化理论来解释,突破了债权相对性,颠覆了民法的平等性。而债权的不可侵性理论在不否认债权相对性的前提下可以解释失信惩戒连带责任制度,同时通过增设审核程序、强化通知程序、完善救济程序的方式完善失信惩戒连带责任制度在法律适用中存在的问题。

As an important part of the disciplinary system for punishment,the joint liability system of punishment for discredit has significantly improved the efficiency of civil execution.However,in the process of concrete implementation,the joint liability of punishment for discredit has been widely discussed because it involves the third party unrelated to the creditor's rights.With the materialization theory of creditor's rights,it breaks through the relativity of creditor's right and subverts the equality of civil law.The inviolability theory of creditor's right can explain the joint liability system of punishment for discredit without denying the relativity of creditor's right.At the same time,problems existing in the application of law in the system of joint liability of punishment for discredit should be improved by adding audit procedures,strengthening notification procedures and improving relief procedures.