執行時效排除規則的困境及其破解

The Predicament of Exclusion Rule of Execution Statute of Limitations and Its Solution

《民事訴訟法》第261 條“債權人發現被執行人有其他財産的，可以隨時請求人民法院執行”一直被解釋爲申請執行期間適用的排除規則，幷得到《民訴法解釋》第515條和第517 條“終結本次執行程序”規則的確認，但其實該解釋與2007 年後申請執行期間的“時效”轉向相衝突。《强制執行法（草案）》第83 條將“ 自終結本次執行程序之日起滿五年且未發現被執行人可供執行的財産”作爲執行終結事由之一，雖有否定執行時效排除規則的意味，但它一方面使得申請執行期間走回“期限”定性的老路，另一方面有苛責權利人之嫌。《民事訴訟法》第261 條中“可以隨時請求人民法院執行” 是對“申請執行權不消滅”的操作性强調，也是對“債權未消滅” 的程序性回應，與執行時效無關。終本程序的執行時效後果應直接適用《民法典》第195 條“時效中斷” 規則，産生“從有關程序終結時起，時效期間重新計算”的效果。

Article 261 of the Civil Procedure Law stipulates that “if the creditor finds that the person subjected to execution has other property, he can request the people’s court to execute at any time”, which has been interpreted as an exclusion rule applicable during the period of application for execution, and has been confirmed by the rules of Article 515 and Article 517 of the Judicial Interpretation of the Civil Procedure Law “termination of current execution procedure”, but in fact, this interpretation conflicts with the “statute of limitations” shift in the period of application for execution after 2007. Article 83 of the Compulsory Execution Law (Draft) takes “five years from the date of the termination of current execution procedure and no property available for execution has been found by the person subjected to execution” as one of the reasons for the termination of execution. Although it means negating the exclusion rule of execution statute of limitations, on the one hand, it makes the period of application for execution go back to the old way of the “time limit” characterization; on the other hand, it is suspected of harsh blaming the rights-holder. Therefore, it is urgent to rethink the systematization of the exclusion rule of execution statute of limitations. In Article 261 of the Civil Procedure Law, “the court may be requested to execute at any time” is an operational emphasis on “the right to apply for execution does not extinguish”, and it is also a procedural response to “the creditor’s right does not extinguish”, which has nothing to do with execution statute of limitations. The consequences of execution statute of limitations of the termination of current execution procedure shall be directly applicable to the rule of “interruption of limitation” in Article 195 of the Civil Code, which has the effect of “the limitation period shall be recalculated from the termination of the relevant procedure”.