自治与强制:民事调解书执行的路径选择——以《法院调解规定》第15条为中心

Selection of the Path from Autonomy to Compulsory Enforcement Based on Civil Mediation Awards:A Focus on Article 15 of Provisions of the Supreme People’s Court on Certain Issues concerning Work of Civil Mediation of People’s Courts

民事调解书的内容与效力,均始于自治而通向强制,但二者在特定情形下会呈现出张力,在给付内容实现的过程中相互抵牾,典型的情形就是调解书中民事责任条款的强制执行。以最高法院公报案例为代表的原路径将调解书视为附条件执行依据,将审查重点置于调解书生效后当事人的违约事实是否存在,认为应由当事人另行起诉取得有既判力的判定。原路径以调解书的既判力为本位,错将债务人的抗辩作为条件,忽视了争议本身并不必然构成就民事责任内容申请执行的障碍,因此偏离了核心问题。新路径自始就以调解书的强制执行效力与目标为本位,认可约定民事责任的实体给付义务性质,将民事责任部分的执行力作为《法院调解规定》第15条两款间的意义关联。无论是否肯定调解书的既判力,都应认可其中的当事人自治因素,民事责任的不确定性实质是为执行承诺保留实体抗辩。

The content and legal effect of civil mediation awards come from the autonomy of both parties and lead to compulsory enforcement. But there may be mutual contradiction of autonomy and compulsory enforcement in certain circumstances of the implementation of obligations. It is the compulsory enforcement of civil liabilities confirmed by the mediation awards that comes to the typical case. The original path represented by a bulletin base from the Gazette of the Supreme People’s Court regards the mediation awards as conditional bases of execution. The key issue of review in such a path is the existence of the fact that debtors violate the obligations, and the Supreme People’s Court asks the parties to file another lawsuit to gain a judgment with res judicata. The basis of the original path is the res judicata of mediation awards. It regards mistakenly the counterplea of debtor as a condition of bases, and ignores that the controversy itself may not necessarily become the obstacle to application for execution. Therefore, the original path deviates from the key point. The basis of the new path is the legal effect and the objective of compulsory enforcement. It regards the civil liability in the mediation awards as substantive obligations, the enforceability of which is used to link the two provisions of Article 15 in Provisions of the Supreme People’s Court on Certain Issues concerning Work of Civil Mediation of People’s Courts. It should be admitted that there are factors of autonomy of parties in civil mediation awards regardless of the res judicata. The essence of the indeterminacy of civil liabilities is the burden of substantive counterplea attached to the commitment of the debtor to accept the forcible execution.