终结本次执行制度的创新与未来设计——兼评民事强制执行法草案第83条第1款第8项

The Innovation of the End of This Enforcement System and Future Design:A Comment on Article 83,Paragraph 1,Item 8 of the Civil Enforcement Bill

为解决执行积案问题,我国人民法院经过域外法律借鉴和本土经验总结,创新性地确立了终结本次执行机制。然而,终结本次执行并非执行终结或结束,至少五年内法院的一些执行措施还在运行。因此,寻求进一步的程序路径成为学者们的研究对象及强制执行法立法的一个焦点。有学者提出终结本次执行五年后仍然无财产供执行的,应当终结执行,民事强制执行法草案第83条采纳了这种意见。笔者认为此观点缺乏理论根据,违背民事法律原理。笔者认为根据民事法律原理及执行法学原理,应为终结本次执行后一定时间后,若被执行人仍然无财产可供执行的,法院可裁定执行程序终结。之后发现债务人财产时,债权人仍有权再次申请法院强制执行。

In order to solve the problem of enforcement backlog, the People’s Court of China has innovatively established the mechanism of terminating the current enforcement after learning from overseas laws and summarizing local experimental experiences. However, the termination of one enforcement is not the end of the whole enforcement or settlement of a lawsuit, and some enforcement measures of the court are still in operation for at least five years.Therefore, the search for further procedural paths has become an object of research by experts and scholars and the focus of enforcement law legislation. Some experts and scholars have proposed that if there is still no property to be executed five years after the termination of the current enforcement, it should be terminated, and this opinion is adopted in Article 83 of the current Civil Enforcement Bill. The author holds the opinion that this view lacks a theoretical basis, contrary to the principles of civil law. The author believes that according to the principles of civil law and the principles of enforcement jurisprudence, it should be a certain period of time after the termination of this enforcement, if the executor still has no property available for enforcement, the court may rule that the enforcement process is terminated. When the debtor’s property is found afterward, the creditor still has the right to apply for court enforcement again.