執行救濟制度的體系化

改革開放四十年以來，我國民事執行制度取得了長足進步。作為民事執行制度的有機組成部分，執行救濟制度也從無到有得以逐步完善。但由於我國民事執行的制度建構是在民事執行實踐中不斷摸索方逐漸形成，基於實踐和觀念上的局限，執行救濟制度的現實狀態與更有效地解決執行亂、維護當事人合法權益的理想目標，尚有一定距離。要進一步完善民事救濟制度，就需要從體系化的角度系統地考察研究民事救濟制度體系的基本因素，並在此基礎上，調整、補充和完善民事執行救濟的各項具體制度，實現各項制度之間的整合與協調。執行中實體問題與程式問題的界分是執行救濟制度體系化的基本考量因素。我國民事執行救濟制度的體系建構必須回應這一要求，並將實體問題與程式問題的界分作為一般原則，形成實體上的執行救濟制度與程式上的執行救濟制度相配合的二元構造。在執行實體救濟上，應當建立請求異議之訴，增設執行回轉之訴，慎待執行文付與制度，完善債權人異議之訴。在執行程式救濟上，應當設立“移審異議+原審異議”的二元救濟。如此，才能建立起滿足民事訴訟與執行、執行與執行救濟、各執行救濟制度之間協調統一、自洽之要求的體系。

Since Reform and Opening, China’s civil enforcement system has made considerable progress thanks to the practice of forty years. As an integral part of civil enforcement system, the remedy system of enforcement has been built from scratch and has been constantly improved since then. However, for the reason that China’s civil enforcement system is constructed gradually through trial and error in concrete practice and is limited by the confines of practice and minds, there is still a gap between the current development of the remedy system of enforcement and the ideal of solving the problem of arbitrary enforcement more efficiently and protecting lawful rights and interests, leaving the equilibrium in both the actualization of rights and the remedy of rights to be reached. The further improvement of the remedy system of civil rights requires a systematic consideration and study of the fundamental structural elements, based on which, the adjustment, complement and improvement of each particular secondary system can be done so that the concordance and coherence between those systems will be realized. The demarcation of procedural issues and substantive issues is a fundamental element to be taken into consideration in the process of the systemization of the enforcement remedies. The different functions of civil action and civil enforcement decides that it is a must to formulate different paths of remedy based on the nature of the subject matter of dispute in the enforcement. Therefore, the construction of China’s the remedy system of enforcement needs to be in line with this, and regards the demarcation of procedural issues and substantive issues as a general principle. To set up different remedy procedures for substantive matters in dispute and procedural matters in dispute in civil enforcement is an important task of systemization, which means a binary structure of enforcement remedies for substantive matters and enforcement remedies for procedural matters. Only in this way can a consistent and consonant multi-dimensional relationship between civil action and enforcement, enforcement and its remedies be accomplished.