论我国民事先予执行制度的完善

发布时间：2018-06-30 08:24

本文选题：民事先予执行 + 民事假执行　；参考：《内蒙古大学》2017年硕士论文

【摘要】：先予执行制度,本质上属于"未决而先执行",是指法院作出终审裁判前,以裁定的方式判令一方当事人先行给付。先予执行具有预决性、执行性、程序性和不可代替性的特征。先予执行制度有助于弥补诉讼程序事后性救济的不足,可对"恶意上诉"加以制约,还可一定程度缓解"执行难"问题。近年来,随着诉讼率的不断上升,在司法过程中先予执行适用量也逐年加大,申请先予执行的案件主要集中在排除妨碍和返还原物民事纠纷中。申请先予执行案件中申请人和被申请人人数已经由以往的单一主体,发展为现今的复合主体。法院先予执行审查中权利义务关系明确方面证据审查的工作量大,裁定先予执行后执行难度增大。先予执行发生在诉讼进程中,当事人对实体权利、诉讼权利的处分增加了先予执行制度的运行难度,如法院调解后先予执行裁定如何处理,原告申请撤诉与先予执行如何衔接,先予执行后能否通过再审程序撤销先予执行裁定等问题,因《民诉法》与《民诉法解释》均未明确,造成我国先予执行制度难以适应司法实践要求,我国先予执行制度只注重"及时"保护,忽略了"有效"保护,需要重新进行立法理念,完善立法原则,扩展适用范围,改进适用条件,增加启动途径,完善审查和审理程序,完善救济程序。
[Abstract]:The system of pre-emptive enforcement is essentially "pending and first executed", which means that a party is ordered to pay in advance by a ruling before the court makes a final decision. Preemptive execution is characterized by predetermination, execution, procedure and irreplaceable. The system of preemptive execution is helpful to remedy the deficiency of ex post relief of litigation procedure, which can restrict "malicious appeal" and alleviate the problem of "difficulty of execution" to a certain extent. In recent years, with the increasing of litigation rate, the application of first execution in the judicial process is also increasing year by year. The cases of application for first execution mainly focus on the elimination of obstruction and return of original civil disputes. The number of applicants and respondents has changed from the former single subject to the present complex subject. In the aspect of clear relationship between rights and obligations, the workload of evidence review in the first execution review of the court is great, and the execution difficulty after the first execution is increased. Pre-execution occurs in the process of litigation. The disposition of the parties' substantive rights and litigation rights increases the operational difficulty of the pre-execution system, such as how to deal with the first-execution ruling after the court mediation, how to connect the plaintiff's application for withdrawal with the prior execution, Whether we can revoke the first-execution ruling through the retrial procedure after the first execution, because the interpretation of the Civil procedure Law and the people's Action Law are not clear, it is difficult for our country's first execution system to adapt to the requirements of judicial practice. The first execution system of our country only pays attention to "timely" protection, neglects "effective" protection, and needs to carry on the legislation idea again, consummates the legislative principle, expands the scope of application, improves the applicable condition, increases the starting way, consummates the examination and the trial procedure. Improve relief procedures.
【学位授予单位】：内蒙古大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D925.1

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