論民事“執行和解”制度

民事“執行和解”制度源自1982年《民事訴訟法（試行）》起草者對執行“說服教育”原則的創造性變通。它為受困於執行資源不足的全國法院提供了一種結案“出口”。隨著中國社會進入“過度複雜性”階段，以及社會複雜性不經有效過濾便輸入執行程式，執行和解成為化簡複雜性的獨特程式裝置。但受其“半結構化、低制度化”的制度樣式的制約，執行和解制度的化簡功能遠不盡如人意，既產生了“雙高”現象，又不時造成辦案難度的不減反增。在“主要效力”理論的指引下，一方面應對社會事實保持認知的開放，另一方面對執行和解制度進行完善，以形成相對完整、複雜的規範結構，從而更好地化簡複雜性及服務於解決“執行難”。

The system of reconciliation in civil enforcement, in which the parties are allowed to reach a settlement agreement before the judgement is executed, originated in the Civil Procedure Law 1982(for trial implementation). It was treated as a replacement of the ''Persuasion and Education Principle'' by the legislators. The legislators aimed to provide Chinese courts, who had suffered a serious shortage of judicial resources, with a specific way-out for civil enforcement cases. As the social complexity of Chinese society had cast its role in the civil enforcement procedure, the system, as a unique procedural setting, was born and shaped to reduce the cases’ complexity. Contrary to their expectations, however, since the system fell short of structurization and institutionalization, the high rate of reconciliation agreements reached coincided with an equally high rate of failure to perform those agreements, and the system seemed to make cases even more complicated than before, after vain attempts to seek for reconciliation. Based on the ''main effect'' theory, this paper proposes to improve the system of reconciliation in civil enforcement through the lens of Niklas Luhmann’s theory of cognitive openness to the society. By virtue of this theory, it is possible to build a mechanism, which may reduce the social complexity to a large extent.