不予執行制度的反思與規制路徑重置

Rethinking of Non-enforcement System and Resetting of Regulation Path

當事人申請不予執行制度指向兩類執行依據，分別是公證債權文書和仲裁裁決。不予執行制度既是對兩類執行依據的司法審查，也發揮了執行救濟功能。但不予執行制度理性應受質疑。一方面，不予執行制度對公證債權文書是否成立、仲裁裁決是否有效的審查，與執行立案程序的審查內容一致，造成了二者的功能重疊。另一方面，不予執行事由指向的公證債權文書不成立、仲裁裁決無效情形，都屬於執行依據不合法。由於執行依據無法表徵基礎權利存在，對其執行應當屬於不當執行，而不予執行制度內置的卻是對違法執行的救濟邏輯。因此，不予執行制度應予廢棄。取而代之的應是，在立案審查階段廓清執行機關的審查範圍，對執行依據應當前置審查、實質審查、一段審查，並充實執行立案程序的調查方法；在執行救濟階段則應回歸對不當執行的救濟邏輯，將執行裁決救濟重置為訴訟救濟。

The parties' application for non-enforcement system points to two types of enforcement basis, which are notarized creditor's rights documents and arbitration awards. The non-execution system is not only a judicial review of them, but also plays the function of execution relief. But the rationality of not enforcing the system should be questioned. On the one hand, the opening of compulsory execution needs to meet certain conditions, which is the review of the execution elements, to ensure the legality and legitimacy of the commencement of the execution procedure. Based on the experience of comparative law, the review of enforcement requirements can be divided into two models: the approval model and the shared review model. The common experience of the two is to adopt the pre-review of enforcement requirements, so as to provide certainty for the enforcement behavior. Among them, the review of the execution basis is an important part of the review of the execution requirements. Different from the above two modes, not only the execution of the case-filing procedure has the responsibility of examining the execution elements, but also the execution organ still has the responsibility of reviewing the execution elements in the process of the execution procedure, thus forming a double review structure. As far as the review of the execution basis is concerned, not only does the execution case-filing procedure need to review the elements such as whether the execution basis is established, effective and valid, but after the execution procedure is opened, the non-execution system should also conduct a secondary review of whether the notarized creditor's rights documents are established and whether the arbitration award is valid. Clearly, this overlaps with the function of the case-filing review process. Since the non-execution of the review is a post-review procedure, it also leads to the execution of the case-filing procedure can only play a symbolic role in the review function. On the other hand, the relief of execution is divided into relief for illegal execution and relief for improper execution, and the non-execution system should explain its logical attribution of relief between the two. The cause of non-enforcement refers to the situation where the notarized creditor's rights document is not established and the arbitral award is invalid, which belongs to the illegal basis for enforcement. Because the execution basis can not reflect the existence of basic rights, the enforcement of it lacks the legitimacy of the execution result. The enforcement of these circumstances should be classified as the category of improper execution, and it should be matched with the path of litigation relief. The non-execution system is the relief logic to illegal execution, and its relief path is applicable to the adjudication procedure in execution. It can be seen that the enforcement relief logic of the non-enforcement system is fundamentally wrong. Therefore, the non-enforcement system should be abolished. The correct way to solve the problem is to clarify the scope of the review of the executive organ at the stage of filing the case, and make individual review mode arrangements for different execution elements. The execution basis should be pre-examined, substantive review, one-paragraph review, and enrich the investigation methods of the execution of the case filing procedure, such as introducing inquiry, hearing procedures, etc., and provide proper procedural protection through the simple review procedure; In the stage of execution relief, we should return to the logic of relief for improper execution, and reset the execution award relief to litigation relief. The legal relief of notarized creditor's rights documents should be carried out through the debtor's objection lawsuit, and the legal relief of arbitration award should be carried out through the arbitration award cancellation procedure.