论限制被执行人高消费制度

发布时间：2019-04-20 12:49

【摘要】：近年来,“执行难”成为社会关注的热点,是困扰人民法院执行工作的主要问题之一。“执行难”问题的存在使公民的正当权益得不到保障,严重影响司法的公信力,有损法律权威。执行威慑机制通过对被执行人的生活造成不便等手段,对被执行人产生心理上的震慑,从而促使被执行人自觉履行义务。执行威慑机制的引入实现了执行手段从单纯的直接强制执行向强制执行和间接精神威慑相结合转变。限制被执行人高消费制度属于执行威慑机制的范畴,其目的是通过限制被执行人的高消费行为,如限制其乘坐飞机、限制其购买、新建不动产等,对被执行人的生活产生不便,从而使被执行人主动履行债务。限制被执行人高消费制度经过各地法院前期的试点工作,专家的研究讨论,以及公开向社会征求意见,最终,最高人民法院于2010年颁布了《关于限制被执行人高消费的若干规定》。该司法解释的颁布一改各地法院单兵作战的局面,使该制度在全国范围内的实施具有统一的标准。该制度的建立是对执行威慑制度的重要补充,有利于“执行难”问题的解决。但是作为一项出台不久的执行手段,该制度还有很多不足值得进一步研究和探讨。本文就限制被执行人高消费制度进行了分析和论述,并对完善该制度提出了一些建议。全文除引言和结语外,主要包括四个部分：第一部分为限制被执行人高消费制度的制度化路径。这一部分先从各地法院的前期试点工作谈起,并简单评价了试点工作的概况。随后,介绍了最高人民法院颁布司法解释的过程,并对该司法解释进行了评价。第二部分论述了限制被执行人高消费制度的正当性。限制被执行人高消费制度是执行威慑机制的重要补充,该制度的建立有利于解决执行难问题,有利于社会公平正义的实现。第三部分则从规范层面和实践层面两方面分析了限制被执行人高消费制度存在的问题。在规范层面,该制度在限制乘坐交通工具的范围、限制子女择校、“跟随性”消费行为的规制方面还有待商榷。在实践层面,存在着操作性不强,实际作用有限；“跨区域”实施难度大；处罚措施疲软等问题。第四部分为限制被执行人高消费制度的完善。此部分针对上述制度缺陷提出了几点对策,首先是加强限制被执行人高消费制度的事先制度建设；其次,要加强执行工作的社会联动机制；最后,要建立完善的监管机制。
[Abstract]:In recent years, "execution difficulty" has become the focus of social concern, and it is one of the main problems that puzzles the execution of people's courts. The existence of "difficulty in execution" makes the legitimate rights and interests of citizens not guaranteed, which seriously affects the credibility of the judiciary and impairs the authority of the law. The executive deterrence mechanism causes psychological deterrence to the executed person by means of causing inconvenience to the life of the executed person, so as to promote the executed person to fulfill his obligation consciously. The introduction of enforcement deterrence mechanism realizes the transformation of enforcement means from simple direct enforcement to enforcement and indirect spiritual deterrence. The system of restricting the high consumption of the executed person belongs to the scope of the enforcement deterrence mechanism, the purpose of which is to cause inconvenience to the life of the executed person by restricting the high consumption behavior of the executed person, such as restricting his flight, restricting his purchase, building new real estate, and so on. So that the execution of the active performance of the debt. The system of restricting the high consumption of the executed persons went through preliminary pilot work in local courts, research and discussion by experts, and public solicitation of opinions from the society, and finally, In 2010, the Supreme people's Court promulgated a number of regulations on restricting the high consumption of persons executed. The promulgation of the judicial interpretation changes the situation of individual combat in the courts of all over the country, and makes the implementation of the system uniform throughout the country. The establishment of this system is an important supplement to the implementation of deterrence system and is conducive to solving the problem of difficulty in enforcement. However, as a short-term means of implementation, the system still has a lot of shortcomings worthy of further study and discussion. This paper analyzes and discusses the system of restricting the high consumption of the executed person, and puts forward some suggestions to perfect the system. In addition to the introduction and conclusion, the paper mainly includes four parts: the first part is the institutionalized path to limit the high consumption system of the executed person. This part begins with the preliminary pilot work of the local courts, and simply evaluates the general situation of the pilot work. Then, the process of the Supreme people's Court promulgating the judicial interpretation is introduced, and the judicial interpretation is evaluated. The second part discusses the legitimacy of restricting the high consumption system of the executed person. The system of restricting the high consumption of the executed person is an important supplement to the enforcement deterrence mechanism. The establishment of the system is conducive to solving the difficult problem of execution and to the realization of social justice and justice. The third part analyzes the existing problems of restricting the high consumption system of the executed persons from both the normative level and the practical level. At the normative level, the regulation of this system is still open to discussion in terms of limiting the scope of transportation, restricting children's choice of schools, and "following-up" consumption behavior. At the practical level, there are some problems, such as weak operability, limited practical effect, difficulty in implementing "cross-regional", weak punishment measures and so on. The fourth part is to limit the implementation of the high consumption system of perfection. This part puts forward some countermeasures against the above-mentioned system defects, first of all, to strengthen the pre-system construction to limit the high consumption system of the executed person; secondly, to strengthen the social linkage mechanism of the execution work; finally, to establish a perfect supervision mechanism.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.18

【参考文献】