协议类执行依据的审查逻辑和制度完善

The Review Logic and System Improvement of Execution Credentials Based on Agreement

协议类执行依据所载债权相对于诉请解决的原争议民事权利义务,实质上是债的变更、债的替换或者新债取代旧债,且经常将现在给付请求权更换为如担保、将来给付、违约责任等诸多具有不确定因素的新的给付请求权。依据制作机构仅进行债的变更、债的替换或者新债产生的合法性审查。新债要素的歧义和不确定性易导致执行内容争议。为保障此类执行依据的执行力,审查主体应当从执行机构调整为执行依据制作机构,执行机构自身仅限于公益性或者程序性审查。当执行依据内容审查机构难以确定执行依据实质而不予执行时,原则上应当允许申请执行人以新的法律关系为基础另行起诉。

Compared with the civil right in the original dispute settled by the litigation,the creditor’s right in execution credentials based on agreement are essentially replaced by the modification of the right,the replacement of the right or the creation of the new right,with the claim for present payment being often replaced by the new claim for payment of uncertain factors such as guarantee,future payment or liability for breach of contract.The ambiguity and uncertainty of the new right’s elements lead to the controversy of the right content in the execution credentials because the institution which made execution credentials based on agreement just acknowledges conversion of old right and new one based replacement legality review.In order to ensure the executability of such enforcement credentials,the review agency should be adjusted to the institution which made the enforcement credentials from the executing agency,which itself should be limited to the public welfare review or procedural review.The creditor should be allowed to sue on the basis of the new legal right when executing review agency refuse to implement execution credentials because it is difficult for the agency to determine its substance right content.