论失信被执行人联合惩戒的性质、正当性与完善路径

The Nature, Legitimacy and Improvement Path of Joint Punishment of Dishonest Executors

失信被执行人联合惩戒措施针对不履行义务和妨害民事执行两类失信行为。惩戒不履行义务失信人是民事执行行为,目的是促进义务履行;惩戒妨害民事执行行为人是处罚行为,目的是预防和减少违法行为。失信联合惩戒合作备忘录改变了《民事诉讼法》规定的执行机制并设定惩戒措施,其他机关对妨害民事执行行为实施惩戒都面临合法性的问题。《合作备忘录》不应设定惩戒措施,而应立足于规范联合惩戒主体之间的关系。对失信被执行行为,联合惩戒是间接惩罚,须重视失信行为直接惩罚,辅之以间接惩罚。对妨害民事执行的失信行为,应由法院采取直接惩罚措施,联合惩戒应主要针对不履行义务的失信行为。

The joint disciplinary measures of the dishonest executee aim at two kinds of dishonest behaviors:non performance of obligations and obstruction of civil execution.Punishing those who fail to perform their obligations is a Civil Execution Act,with the purpose of promoting the performance of their obligations;punishing those who hinder the Civil Execution Act is a punishment act,with the purpose of preventing and reducing illegal acts.The memorandum of cooperation on joint punishment for breach of faith has changed the enforcement mechanism stipulated in the civil procedure law and set up disciplinary measures,and other organs are facing problems of legality in punishing acts of obstructing civil enforcement.The memorandum of cooperation should not set up disciplinary measures,but should be based on regulating the relationship between the subjects of joint disciplinary action.The joint punishment is an indirect punishment for the act of dishonesty.We should pay attention to the direct punishment for the act of dishonesty,supplemented by the indirect punishment.The court shall take direct punishment measures for the acts of impeding the civil execution of dishonesty,and the joint punishment mainly aims at the acts of failing to perform obligations.