论执行力客观范围的扩张——以应还土地上拆除房屋之诉讼实现路径为视角

On the Expansion of the Objective Scope of Executive Power——From the perspective of the realization path of the lawsuit of demolishing houses on the returned land

请求合并路径与执行力客观范围扩张路径,在实现"返还净地与无碍利用"的诉讼目的方面,各有优势。但是基于诉讼习惯等原因,需要坚持请求合并路径的正统地位。因为执行力客观范围扩张路径,在处理"执行名义成立后新建房屋的拆除"方面,具有优势,且其实现程序,具有实体上与程序上的正当性,在现行法下也有适用的可能性,所以两种路径能够并存。鉴于短期修法无望的现实与专门执行立法的远景,对返还土地上拆除房屋的实现路径,应制定专门的司法解释,以期积累理论成果与实践经验。

The path of merging requests and the path of expanding the objective scope of execution have their own advantages in realizing the purpose of lawsuit of"returning clean land and making unhindered use".However,due to litigation habits and other reasons,we need to adhere to the orthodox position of the path of merger request.Because the objective scope expansion path of execution has advantages in dealing with the demolition of newly built houses after the establishment of the name of execution,and its realization procedure has the legitimacy in substance and procedure,and also has the possibility of application under the current law,so the two paths can coexist.In view of the hopeless reality of short-term law amendment and the prospect of special implementation of legislation,special judicial interpretation should be formulated to realize the path of demolition of houses on returned land,in order to accumulate theoretical results and practical experience.