民事执行程序中当事人的追加和变更
发布时间：2018-10-14 17:37
【摘要】：我国的法院是法律纠纷的裁判者也是生效判决的执行者,在我国的法治建设中起着关键性的作用。当事人发生民事纠纷,经法院裁判后,如果败诉方不能自动履行,胜诉方的权利无法通过生效裁判得到保护,故法律赋予当事人申请执行的权利,用以保护胜诉方的胜诉权得以实现。法院应依法行使自己的强制措施,既要维护胜诉方的权利,也要充分的保障被执行人的合法权益,近年来随着我国经济建设的迅猛发展,各种民事纠纷层出不穷,执行中也面临着许多立法时无法预见的问题,这些问题往往因不能妥善解决从而导致生效裁判执行不能,其直接后果剥夺了当事人依据生效法律文书期待获得的法律利益,深层次也影响到法律在社会生活中的权威性,不利于我国建设法治社会的执政理念。这些执行难题涉及到法律的各个层面,其中涉及追加或者变更执行当事人的问题出现的更为频繁。如何规范法院的执行行为,防范当事人规避法律责任的违法行为需要对该问题进行及时深刻的研究。 民事执行当事人变更和追加是两个法律现象,属于两种法律问题,但二者均是民事执行承担的外在表现形式。执行承担的产生可因程序也可因实体。因程序法的原因产生执行承担的法理基础是执行名义效力主观范围的扩张；因实体法的原因产生执行承担的法理基础是连带责任的不可分割性。由于法理基础不同,民事执行当事人变更或者追加的程序设计亦有所不同。现实司法活动中,执法机关并没有将二者进行必要的区分,往往简单的适用《民诉法》和最高院的有关司法解释,这种机械性的适用,已经逐渐无法适用社会的发展与执行情况的多样性,所以只有加深对该问题的理论研究,才能真正的理顺执行中遇到的问题,公平公正的解决执行难题,保证双方当事人的合法权益,杜绝违法行为的出现。 本文主要针对法院实际执行过程中,执行当事人需要变更和追加的条件、适用范围、理论基础、我国立法现状及完善途径的角度对执行当事人的变更和追加进行法律研究。目的是通过对大陆法系国家已成熟的法理思想,结合我国目前的立法现状,提出完善我国有关执行当事人变更和追加问题理论研究的方式方法,同时提出自己的分析意见,为我国的法治建设尽绵薄之力。
[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.
【学位授予单位】：大连海事大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.18
本文编号：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.
【学位授予单位】：大连海事大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.18
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