民事强制执行立案审查论

Study on the Adjudication of Enforcement Filing Requirement in Civil Case

不同于起诉立案,执行立案以保障执行行为的顺利推进为目标。我国执行立案在程序上依附于诉讼立案,实践中,因立案审查不规范导致执行效率低下。相较于狭义诉权,执行请求权的公法属性决定其实质审查之必要;加之域外执行合法性要件审查之通例,立案登记制改革显然与“执行难”化解相悖离。我国执行立案兼具程序和管理双重价值,不宜采取复式审查结构。立执分离的核心要义在于将具体执行工作事务化,通过执行要件审查程序的剥离,回归执行行为的职权属性。借助于执行立案的单层双阶审查模式,可将我国执行立案要件区分为形式要件和实质要件,后者的审查需要配合卷宗调阅和听证制度。对不予受理执行申请的救济,在赋予申请人异议权、复议权的同时,更应做好分类纾解工作。

Different from the filing of litigation, the filing of enforcement procedure strives to deliver the interests of creditors in an efficient way. In practice, delays in enforcement are very common because of the unregulated filing adjudication. The right of enforcement claim has the attribute of public law. According to the prevailing practice in foreign countries, the elements of legality must be reviewed first. The reform of the registration system in the field of enforcement is obviously contrary to the resolution of the dilemma of enforcement. China’s filing of enforcement has dual value of both procedure and management, so it is not appropriate to adopt a compound adjudication structure. The core purpose of the separation of the filing and execution is to make the specific implementation work transactional, that is, to return to the authority of the enforcement through the independence of filing procedure.Referring to the two-stage procedural rules of the filing of enforcement, the requirements of enforcement filing can be divided into formal elements and substantive elements. And the review of substantive elements involves certiorari or hearing system. In response to the refusal of the filing, on the one hand, the applicant should be given the right of objection and reconsideration. On the other hand, interpretation should be done for different types.