日本第三人异议之诉的判决效力及其启示

The Judgment Effect of the Third Party Action against Execution in Japan and its Enlightenments

第三人异议之诉作为一项实体性执行救济,以诉的形式来排除执行法院对特定财产或权利的强制执行。作为最有代表性的大陆法系国家之一,日本对第三人异议之诉及其判决效力有深入研究,尤其做到了该诉之性质与判决各效力之间的契合。而我国因对该诉立法不甚明晰、研究不够系统,致使各地法院对其认识有差异,所做出的相异判决也给执行机关处置标的物及案外人另行诉讼带来了较大困扰。我国可借鉴日本经验,采取形成之诉说,将诉讼法上的异议权作为第三人异议之诉的诉讼标的和裁判范围,其胜诉判决应明确宣告中止执行标的物的内容,同时还要引入预决力理论以避免该诉判决与嗣后确权判决发生矛盾。

As a substantive execution remedy, the third party action against execution excludes the enforcement of specific property or rights in the form of a lawsuit. Japan is one of most representative civil law countries, which has a deep study on the third party action against execution and its judgment effect,especially to achieve the consistency between the nature of the lawsuit and the judgment effect. However,due to the lack of clarity in legislation and systematic research on this lawsuit, Chinese courts in different regions have different understandings of this lawsuit and make the different judgments which bring great troubles to the disposal of the subject matter by the executing agency and another separate lawsuit by the third party. Through the beneficial reference of Japan’s experience, we should adopt the forming sue theory,which regards the right of objection in the procedural law as the object of action and the scope of judgment in the third party action against execution. The prevailing judgment should be declared to suspend the execution of the subject matter. At the same time, it is necessary to introduce the theory of pre-determination to avoid the conflicts between the judgment of this lawsuit and the subsequent judgment.