我国执行异议之诉的程序性审判难点问题及其解决

发布时间：2019-05-18 19:41

【摘要】：执行异议之诉作为一种新型诉讼，体现了我国司法理念的更新，也体现了我国司法制度的进步，但该诉讼形式刚刚起步，还尚显稚嫩，特别是在程序设计上还有许多不足，造成司法实践中的很多问题难以妥善解决，给司法实践者造成困扰。为此，笔者尝试首先从执行异议之诉的基本制度安排入手，继而着重探讨执行异议之诉的六项具体程序问题，按照提出问题、分析问题、解决问题的思路，对六项程序问题给予一一剖析，最后有针对性的提出了完善我国执行异议之诉程序设计的若干尚不成熟的建议。首先介绍我国执行异议之诉的基本制度概要。通过对我国执行异议之诉的概念、由来、类型、特点的逐一介绍，一方面使我国执行异议之诉的面貌特定化，另一方面也将全文探讨对象固定化。接下来分别介绍六项具体程序在司法实践中尚待解决的问题，以及分析的思路和司法实践中的通常做法。关于执行异议之诉的受理，本文重点论述如何确定执行异议之诉案件的受理条件。关于执行异议之诉的管辖，本文重点论述执行异议之诉由哪个法院管辖，是适用一般管辖原则还是由特定法院专属管辖，，裁定管辖和管辖权异议如何处理。关于执行异议之诉的诉讼参与人，本文重点论述案外人执行异议之诉和申请执行人执行异议之诉的各自诉讼参与人如何确定。关于执行异议之诉的期间，本文重点论述提起执行异议之诉的起止期间如何确定，案外人异议和执行异议之诉的衔接时限如何确定以及超期提起执行异议之诉的法律后果及救济途径。关于执行异议之诉与执行程序的衔接，本文重点论述执行异议之诉期间是否停止执行，执行异议之诉处理结果与执行程序如何衔接。关于针对轮候查封提起的执行异议之诉，本文重点论述针对轮候查封提起的执行异议之诉应如何处理。最后，针对执行异议之诉的具体程序问题，笔者围绕受理、管辖、诉讼参与人、期间、执行异议之诉与执行程序衔接提出相应的完善建议。这些建议均是笔者作为一名普通法官，在司法实践中对现阶段执行异议之诉的感悟与理解，同时，希望最高人民法院及时出台关于执行异议之诉的司法解释，推动司法实践的发展。希望通过本文的探讨，揭示出我国执行异议之诉的不足，尤其是在程序设计上的缺陷，促进有关部门对此问题给予重视，在今后的司法进程中加以解决。
[Abstract]:As a new type of litigation, the lawsuit of execution objection reflects the renewal of the judicial concept of our country and the progress of the judicial system of our country, but the form of the lawsuit has just started and is still young, especially in the design of the procedure, there are still many shortcomings. As a result, many problems in judicial practice are difficult to be properly solved and perplexed to judicial practitioners. Therefore, the author tries to start with the basic institutional arrangement of the execution of the dissenting lawsuit, and then focuses on the six specific procedural problems of the execution of the dissenting lawsuit, according to the train of thought of putting forward the problem, analyzing the problem and solving the problem. This paper analyzes one by one the six procedural problems, and finally puts forward some immature suggestions for perfecting the program design of the execution objection lawsuit in our country. First of all, it introduces the basic system outline of the lawsuit of objection to execution in our country. Through the introduction of the concept, origin, type and characteristics of the lawsuit of execution objection in our country, on the one hand, it makes the appearance of the action of objection in our country specific, on the other hand, it also discusses the immobilization of the object in this paper. Then it introduces the problems to be solved in the judicial practice of the six specific procedures, as well as the train of thought of the analysis and the common practices in the judicial practice. With regard to the acceptance of the lawsuit of enforcement objection, this paper focuses on how to determine the acceptance conditions of the case of execution objection. With regard to the jurisdiction of the action of objection to execution, this paper focuses on which court to govern the action of objection to execution, whether the principle of general jurisdiction is applied or the exclusive jurisdiction of a particular court, and how to deal with the objection of jurisdiction and jurisdiction. With regard to the litigant participants in the lawsuit of enforcement objection, this paper focuses on how to determine the lawsuit of the outsider and the individual litigation participant who apply for the execution of the objection of the executor. With regard to the period of enforcement objection, this paper focuses on how to determine the starting and ending period of filing enforcement objection, How to determine the time limit for the connection between the objection of the outsider and the action of the objection of execution, as well as the legal consequences and relief ways of filing the action of the objection of execution over time. With regard to the connection between the action of execution objection and the execution procedure, this paper focuses on whether the execution of objection action is stopped during the period of execution objection action, and how to connect the result of the action of execution objection with the execution procedure. With regard to the lawsuit against the execution objection brought against the waiting seal, this paper focuses on how to deal with the lawsuit against the execution objection brought against the waiting seal. Finally, in view of the specific procedural problems of the lawsuit of execution objection, the author puts forward some corresponding suggestions on the connection between the action of execution objection and the execution procedure around the acceptance, jurisdiction, litigation participants, during which the action of execution objection is connected with the execution procedure. These suggestions are the author's understanding and understanding of the execution of dissenting litigation at this stage in judicial practice as an ordinary judge. At the same time, I hope that the Supreme people's Court will issue a judicial interpretation of the enforcement of dissenting litigation in a timely manner. Promote the development of judicial practice. Through the discussion of this paper, I hope to reveal the shortcomings of the execution of dissenting litigation in our country, especially the defects in program design, and promote the relevant departments to pay attention to this problem and solve it in the judicial process in the future.
【学位授予单位】：吉林大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.18

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