论不当执行案外人财产行为的实体法效力

On the Substantive Law Effect of Improper Enforcement of and an Outsiders'Property

在诉讼法上的形成之诉说的法律性质定位下,案外人执行异议之诉的功能止于排除执行机关的不当执行行为,无法救济案外人因不当执行行为遭受的损失或损害。案外人因不当执行行为遭受损失或损害时,享有财产损害赔偿请求权或不当得利返还请求权。对于不当执行行为及其损失或损害的救济应当适用二元评价体系,即案外人须基于诉讼法上的异议权和实体法上的请求权,分别提起执行异议之诉和私法关系诉讼。民事强制执行立法应当明确规定不当执行行为的实体法效力,赋予案外人全面的救济路径。

Under the orientation of the legal nature as an action of formation in the procedural law,the function of the lawsuit against the execution by the outsider is to exclude the improper execution carried out by the executive organ,it cannot remedy loss or damage caused to outsiders by improper execution.When an outsider suffers loss or damage due to improper execution,he/she shall have the right to claim compensation for property damage or claim for return of unjust enrichment.In this context,a dual relief system should be applied to improper execution act and its damage or loss.In other words,based on the right of dissent in procedural law and the right of claim in substantive law,an outsider should file a lawsuit against the execution and a private law lawsuit to seek relief.The civil enforcement laws and regulations should clearly stipulate the substantive legal effect of improper execution,and give the outsiders a comprehensive remedypath.