論案外人實體性執行救濟路徑的模式抉擇——以案外人執行異議程序的批判為中心

The Choice of the Mode of the Path of Enforcement Relief on the Entity of the Outsider—Centered on Criticism of the Objection against the Execution by the Outsider

基於非訟程序不能妥善處理具有強烈對抗性、複雜性的不當執行實體爭議的致命缺陷，以及案外人執行異議程序不僅沒有提高執行效率，反而成為了案外人拖延執行的合法途徑的實踐效果，關於案外人執行異議與案外人執行異議之訴之間關係的程序安排，無論是異議前置模式還是自由選擇模式均不具有合理性。其實，我國法上的案外人執行異議程序，羅馬法上的第三人對扣押的異議程序，與德國理論上的分段式執行救濟程序，均未實現加速審理進程以及全面保護案外人利益的目的。未來的《民事強制執行法》應當採取直接起訴模式，嚴格區分因違法執行行為引發的程序爭議與因不當執行行為引發的實體爭議，構建程序上的執行救濟方法與實體上的執行救濟方法涇渭分明的雙軌執行救濟體制。

The relationship between the objection against the execution by the outsider and the lawsuit against the execution by the outsider has always been a controversial issue in the legislative process of the Civil Enforcement Law of China. Lawmakers have been wavering on whether to adopt an objection preposition mode, a direct prosecution mode or a free choice mode. The Civil Enforcement Law (draft) drafted by the Supreme People's Court in November 2022 changed the legislative thinking of direct prosecution mode in the past two years and suddenly returned to the objection predisposition mode. The main differences among the three models are: first, whether the executive agency can review the substantive disputes caused by the improper execution; second, whether the non-litigation procedure can handle the substantive disputes caused by the improper execution; third, whether the objection against the execution by the outsider has the effect of improving the execution efficiency. Although it does not violate the principle of separation of trial and execution that an executive judge examines the objection against the execution by the outsider based on the power of enforcement adjudication, the examination standard of the objection against the execution by the outsider is repeated with the ascertaining standard of liability property and the trial standard of the lawsuit against the execution by the outsider, and the system design is overlapping. Furthermore, the exercise of the power of enforcement adjudication is based on the non-litigation procedure of objection against the execution procedure. Although the lawsuit against the execution by the outsider has the potential to be non-litigious, non-litigation procedures cannot properly deal with complex substantive disputes caused by improper execution of the executive agency because of the strong adversarial nature that is a typical feature of such disputes. In practice, the objection against the execution by the outsider does have the effect of interception before the lawsuit. However, it does not improve the efficiency of execution, and becomes a legal way for outsiders to delay execution and a hotbed of false objections. Therefore, neither the objection preposition mode nor the free choice mode is reasonable. In fact, the third party objection procedure in Roman law and the segmented execution remedy procedure in German law have long shown that the objection predisposition mode and free choice mode cannot accelerate the process of trial and fully protect the interests of outsiders. The procedures of the third party claiming chattels in the United Kingdom and the United States have inherent deficiencies in the trial period and so on. In Germany and Japan, the object of objection expands from procedural illegal act to substantive illegal act, which is very limited. Therefore, it cannot confirm the legitimacy of objection predisposition mode and free choice mode. The objection against the execution by the outsider was reasonable in history, but it is not legitimate today. As for the relationship between the objection against the execution by the outsider and the lawsuit against the execution by the outsider, the Civil Enforcement Law should adopt the direct prosecution mode, and construct a dual track enforcement relief system which is distinct from the procedural and substantive enforcement relief methods.