论文标题:论我国民事强制执行救济制度之完善
Broken Equitable Exchange--analysis on the Contract Ethic
论文作者 金玄默
论文导师 乔欣,论文学位 硕士,论文专业 诉讼法学
论文单位 中国政法大学,点击次数 82,论文页数 52页File Size347k
2003-05-01论文网 http://www.lw23.com/lunwen_680746602/ 电信服务业; 电信服务合同 ; 法定格式合同; 规制
foreign bank;market access;supervision;leagle system;study
执行救济的目的在于对执行程序中出现的违法的、不当的执行行为进行矫正，当执行行为侵害了执行当事人、案外人程序上或实体上的权利时，需要为受害人提供救济的方法和机会。这对于维护执行当事人、案外人合法权益，实现民事执行程序的功能与价值具有重要的意义。目前在我国民事强制执行的司法实践中，“执行乱”的现象比较突出。但是，立法上针对于此的执行救济措施并不完善，这很大程度上影响了对执行当事人和案外人的合法权益的保护，也影响了民事强制执行法律制度功能的有效发挥。有鉴于此，笔者通过对中外有关民事强制执行救济制度的比较，分析了我国民事强制执行救济制度之不足，并提出了完善建议。笔者认为，相对于其他国家,我国的民事强制执行救济制度从方法上看，不仅执行救济措施稀缺（只规定了执行异议和执行回转制度）， 而且这种仅有的执行救济措施本身也存在一定的缺陷。例如，没有区分程序上的救济方法和实体上的救济方法，没有规定执行异议之诉等。另外，从体制上看，我国的民事强制执行救济制度还存在着一些制度性缺陷，最为明显的是执行机关的执行行为缺乏有效的外部监督机制。针对以上问题，笔者提出了以下完善建议：1．要建立和完善程序上的救济制度和实体上的救济制度。其中程序上的救济制度包括赋予执行当事人执行异议权，制定执行抗告制度等。实体上的救济制度包括债务人异议之诉和第三人异议之诉等。2．应完善民事强制执行制度的监督措施。民事强制执行制度的监督，包括内部监督和外部监督。内部监督是指上级法院对下级法院的监督；外部监督包括权力机关的宪法分权制约监督（简称人大监督）、新闻舆论监督、人民群众的社会监督、人民检察院的监督等。3．应建立完善的赔偿机制。在执行过程中，给当事人或利害关系人造成损失的，只要当事人和利害关系人能证明损害的存在和该损害与错误执行具有直接的因果关系，应当给予赔偿。但是，我国民事强制执行立法在赔偿机制方面的规定还很匮乏，所以这方面立法完善和保障也是非常必要的。
1．The fool theoryI, the writer, am a worker for practical affairs of law in Taiwan, have been worked on the practical affairs of a lawyer for many years with a major job as an agent to draft contracts and to suit etc. I have got many thoughts and feelings in the experiences of working of years, and I cannot help writing them down. A question has germinated in my mind for years: Does a contract protect a good guy or a wise guy? The gist of the law for contract is to protect a good guy; however, things often come to contrary ends.Modern economic theories suppose that men are "rational persons" and "economic persons", they can be clearly aware of their benefits. However, the truth is, men of kind hearts often become fools jeered at. Contracts of good quality shall not merely provide stipulations to make fools much hurt and thereby become wiser and wiser; only those contracts that provide stipulations able to protect fools are contracts of good quality.The "fool" talked about here actually can be explained broadly, it includes the meaning of an "overly faint-hearted person" that tends to give promise; a society of specialties and sharing out of works involves contracts concerning the fields of many specialties, ordinary people can not understand those contracts such as medical contracts, lawyer contracts and technologic contracts etc., and this results that "promises will be made out of ignorance"; moreover, both two parties may be "foolish" and both make promises. Therefore, under the strong impelling of private interests in the society with fine sharing out of works, every one can be a fool in the time and the space of a contract. Protection for fools thereby is a very imperative thing.Conventional contracts evidently have a radical defect, wherein they are supposed that men are "rational persons" and can effectively handle their own interests. And the contracts are entered into on an overly simply required basis, that is, when the "opposite" opinions of both parties (or all parties) get mutual consent, the contracts are completed, and the content of each contract then is "integrally formed" of the opinions. Here, under the imaging combination which is "rational and mutual opposition inclusive", the weak parties surely are sad defeated losers.We can easily find that, the birth of a contract does not certainly mean that the contract can be completely performed; a baby just born can never stand up for walking, performance of a contract always is a course of growth rather than a goal to get in a shot. By all means, we can try to stipulate for the contract to make it very detailed in advance, and then "perform according thereto"; however, we have found in practicing that, it is absolutely impossible to completely perform according thereto; there must be a lot of unexpected things that are large and small in the course of performing the contract, a creditor of blockhead certainly can make thorough unfortunateness of a debtor. In view of this, to "perform according thereto" is never the sole way for performing, there are evidently some things else in the contract.Each contract has its essential requisite that is a common object all the interested parties desire tomake come true; in lack of such an essential requisite, the contract will be very weak actually. The problem is not exactly that someone cheats others, or someone makes others obscured, and it is not exactly that the information is not equitable or that someone tries to take advantage of others; the problem nowadays is often that both two parties making the contract are in lack of information and experiences, and even that they only have ideals on the contract to be made without any typical model in practicing, they only image rather than get many experiences, or even that if they have planned, the plan is only an imagination of an object that not yet happens. While in practicing after entering into the contract, the ideals disappear, the plan is ineffective, the imagined object never happens perhaps; rather, there are many new issues c
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