南都学坛2025，Vol.45Issue(4)：83-93,11.
论执行和解协议不宜赋予强制执行力
On the Inappropriateness of Granting Enforcement Power to Settlement Agreements
唐东楚 1谭正午 1陈柳钦2
作者信息
- 1. 中南大学 法学院,湖南 长沙 410083
- 2. 北京中宣文化研究院,北京 100142
- 折叠
摘要
Abstract
From the perspective of the nature of settlement agreements as"civil law contracts,"the legislative principle of"separation of trial and execution,"and the preconditions of judicial confirmation of mediation agreements or the enforcement of notarized creditor rights documents—commonly referred to as the"third-party pre-position"—it is fundamentally inappropriate to confer enforcement power upon settlement agreements,nor should they serve as a basis for enforcement.Even in instances where the enforceability basis remains ambiguous,the principle of"flexible treatment"should apply,precluding the enforcement of me-diation agreements through"restrictive"or"closed"mechanisms.Legal provisions and judicial interpretations in China,particu-larly the 2018"Provisions of the Supreme People's Court on the Execution of Settlement Agreements,"consistently refrain from acknowledging a"third route"for addressing non-performance in the execution of settlement agreements,beyond the established pathways of"application for resumption of execution"or"creditor's litigation."The granting of enforcement power to settlement agreements not only contravenes the foundational intent of enforcement legislation but also undermines the reform objectives of the trial-execution separation system.关键词
执行和解协议/执行力/民法合同/审执分离/第三方前置Key words
settlement agreement execution/enforcement power/civil law contract/separation of trial and execution/third-party pre-position分类
社会科学引用本文复制引用
唐东楚,谭正午,陈柳钦..论执行和解协议不宜赋予强制执行力[J].南都学坛,2025,45(4):83-93,11.
