民事執(zhí)行程序中當事人的追加和變更
發(fā)布時間：2018-10-14 17:37
【摘要】：我國的法院是法律糾紛的裁判者也是生效判決的執(zhí)行者,在我國的法治建設中起著關鍵性的作用。當事人發(fā)生民事糾紛,經(jīng)法院裁判后,如果敗訴方不能自動履行,勝訴方的權利無法通過生效裁判得到保護,故法律賦予當事人申請執(zhí)行的權利,用以保護勝訴方的勝訴權得以實現(xiàn)。法院應依法行使自己的強制措施,既要維護勝訴方的權利,也要充分的保障被執(zhí)行人的合法權益,近年來隨著我國經(jīng)濟建設的迅猛發(fā)展,各種民事糾紛層出不窮,執(zhí)行中也面臨著許多立法時無法預見的問題,這些問題往往因不能妥善解決從而導致生效裁判執(zhí)行不能,其直接后果剝奪了當事人依據(jù)生效法律文書期待獲得的法律利益,深層次也影響到法律在社會生活中的權威性,不利于我國建設法治社會的執(zhí)政理念。這些執(zhí)行難題涉及到法律的各個層面,其中涉及追加或者變更執(zhí)行當事人的問題出現(xiàn)的更為頻繁。如何規(guī)范法院的執(zhí)行行為,防范當事人規(guī)避法律責任的違法行為需要對該問題進行及時深刻的研究。 民事執(zhí)行當事人變更和追加是兩個法律現(xiàn)象,屬于兩種法律問題,但二者均是民事執(zhí)行承擔的外在表現(xiàn)形式。執(zhí)行承擔的產(chǎn)生可因程序也可因實體。因程序法的原因產(chǎn)生執(zhí)行承擔的法理基礎是執(zhí)行名義效力主觀范圍的擴張；因實體法的原因產(chǎn)生執(zhí)行承擔的法理基礎是連帶責任的不可分割性。由于法理基礎不同,民事執(zhí)行當事人變更或者追加的程序設計亦有所不同。現(xiàn)實司法活動中,執(zhí)法機關并沒有將二者進行必要的區(qū)分,往往簡單的適用《民訴法》和最高院的有關司法解釋,這種機械性的適用,已經(jīng)逐漸無法適用社會的發(fā)展與執(zhí)行情況的多樣性,所以只有加深對該問題的理論研究,才能真正的理順執(zhí)行中遇到的問題,公平公正的解決執(zhí)行難題,保證雙方當事人的合法權益,杜絕違法行為的出現(xiàn)。 本文主要針對法院實際執(zhí)行過程中,執(zhí)行當事人需要變更和追加的條件、適用范圍、理論基礎、我國立法現(xiàn)狀及完善途徑的角度對執(zhí)行當事人的變更和追加進行法律研究。目的是通過對大陸法系國家已成熟的法理思想,結合我國目前的立法現(xiàn)狀,提出完善我國有關執(zhí)行當事人變更和追加問題理論研究的方式方法,同時提出自己的分析意見,為我國的法治建設盡綿薄之力。
[Abstract]:The court of our country is the adjudicator of the legal dispute and the executor of the effective judgment, which plays a key role in the construction of the rule of law in our country. If the losing party fails to perform the civil dispute automatically, the rights of the victorious party cannot be protected by the effective judgment, so the law gives the parties the right to apply for enforcement. To protect the successful parties to the right of victory can be realized. The court should exercise its own coercive measures according to law, not only to protect the rights of the successful parties, but also to fully protect the legitimate rights and interests of the executors. In recent years, with the rapid development of economic construction in China, various civil disputes have emerged in endlessly. In the process of enforcement, there are also many problems that can not be foreseen when the legislation is in force. These problems are often not properly resolved, which leads to the failure of the enforcement of the effective decision, and its direct consequence deprives the parties of the legal benefits expected from the legal instruments in force. It also affects the authority of law in social life and is not conducive to the ruling idea of building a society ruled by law in our country. These enforcement problems involve various aspects of the law, including the problem of adding or changing the enforcement parties more frequently. How to regulate the execution of the court and prevent the parties from evading the legal responsibility requires a deep and timely study. The alteration and addition of civil execution parties are two legal phenomena, which belong to two kinds of legal problems, but they are both external forms of civil execution undertaking. Implementation of the responsibility for the generation of procedures can also be attributed to the entity. The legal basis for the execution of the procedural law is the expansion of the subjective scope of the nominal effectiveness of execution, and the legal basis for the execution of the substantive law is the indivisibility of joint and several liability. Because of the different legal basis, the procedure design of the change or addition of the civil execution party is different. In the actual judicial activities, the law enforcement agencies do not make the necessary distinction between the two, and often simply apply the Civil procedure Law and the relevant judicial interpretation of the Supreme Court, which is mechanically applicable. Has gradually been unable to apply to the development of society and the diversity of implementation, so only by deepening the theoretical study of this problem, can we really straighten out the problems encountered in the implementation, and solve the implementation problems fairly and justly. To guarantee the legitimate rights and interests of both parties and to prevent the occurrence of illegal acts. This article mainly aims at the condition, the scope of application, the theoretical basis, the current situation of legislation and the way of perfection of the parties to the execution of the law in the actual execution process of the court, and carries on the legal research on the change and addition of the parties to the execution. The purpose of this paper is to put forward the ways and methods of perfecting the theoretical research on the issue of party change and addition in our country through the mature legal theory thought of the civil law countries and the current legislative situation of our country, and at the same time, to put forward their own analytical opinions. For the rule of law in our country to do its utmost.
【學位授予單位】：大連海事大學
【學位級別】：碩士
【學位授予年份】：2014
【分類號】：D925.18
本文編號：2271151
[Abstract]:The court of our country is the adjudicator of the legal dispute and the executor of the effective judgment, which plays a key role in the construction of the rule of law in our country. If the losing party fails to perform the civil dispute automatically, the rights of the victorious party cannot be protected by the effective judgment, so the law gives the parties the right to apply for enforcement. To protect the successful parties to the right of victory can be realized. The court should exercise its own coercive measures according to law, not only to protect the rights of the successful parties, but also to fully protect the legitimate rights and interests of the executors. In recent years, with the rapid development of economic construction in China, various civil disputes have emerged in endlessly. In the process of enforcement, there are also many problems that can not be foreseen when the legislation is in force. These problems are often not properly resolved, which leads to the failure of the enforcement of the effective decision, and its direct consequence deprives the parties of the legal benefits expected from the legal instruments in force. It also affects the authority of law in social life and is not conducive to the ruling idea of building a society ruled by law in our country. These enforcement problems involve various aspects of the law, including the problem of adding or changing the enforcement parties more frequently. How to regulate the execution of the court and prevent the parties from evading the legal responsibility requires a deep and timely study. The alteration and addition of civil execution parties are two legal phenomena, which belong to two kinds of legal problems, but they are both external forms of civil execution undertaking. Implementation of the responsibility for the generation of procedures can also be attributed to the entity. The legal basis for the execution of the procedural law is the expansion of the subjective scope of the nominal effectiveness of execution, and the legal basis for the execution of the substantive law is the indivisibility of joint and several liability. Because of the different legal basis, the procedure design of the change or addition of the civil execution party is different. In the actual judicial activities, the law enforcement agencies do not make the necessary distinction between the two, and often simply apply the Civil procedure Law and the relevant judicial interpretation of the Supreme Court, which is mechanically applicable. Has gradually been unable to apply to the development of society and the diversity of implementation, so only by deepening the theoretical study of this problem, can we really straighten out the problems encountered in the implementation, and solve the implementation problems fairly and justly. To guarantee the legitimate rights and interests of both parties and to prevent the occurrence of illegal acts. This article mainly aims at the condition, the scope of application, the theoretical basis, the current situation of legislation and the way of perfection of the parties to the execution of the law in the actual execution process of the court, and carries on the legal research on the change and addition of the parties to the execution. The purpose of this paper is to put forward the ways and methods of perfecting the theoretical research on the issue of party change and addition in our country through the mature legal theory thought of the civil law countries and the current legislative situation of our country, and at the same time, to put forward their own analytical opinions. For the rule of law in our country to do its utmost.
【學位授予單位】：大連海事大學
【學位級別】：碩士
【學位授予年份】：2014
【分類號】：D925.18
【參考文獻】
相關期刊論文 前7條
1 肖建華;楊恩乾;;論仲裁裁決的既判力[J];北方法學;2008年06期
2 劉進一;;淺析被執(zhí)行人變更和追加的原理[J];研究生法學;2007年05期
3 孫忠志;范向陽;;執(zhí)行與審判的界限[J];人民司法;2005年09期
4 蘇才清;變更執(zhí)行義務主體的法律問題探析[J];人民司法;1996年06期
5 傅愛紅;論我國執(zhí)行當事人的變更與追加制度的完善[J];山東行政學院山東省經(jīng)濟管理干部學院學報;2004年03期
6 張衛(wèi)平;;判決執(zhí)行力主體范圍的擴張——以實體權利轉讓與執(zhí)行權利的獲得為中心[J];現(xiàn)代法學;2007年05期
7 翁曉斌;論既判力及執(zhí)行力向第三人的擴張[J];浙江社會科學;2003年03期
相關博士學位論文 前1條
1 魏鋒;執(zhí)行當事人研究[D];中國政法大學;2009年
相關碩士學位論文 前1條
1 付玉蘭;民事執(zhí)行當事人變化制度研究[D];中國政法大學;2007年
，本文編號：2271151
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