摘要
执行力主观范围扩张正当性保障机制包括实体和程序正当性要件,前者要求申请执行人对第三人的实体权利存在高度盖然性、第三人与被执行人具有实体利益归属一致性;后者要求扩张满足扩张前、扩张后的程序保障要求。在夫妻单方举债,执行名义确定夫妻一方为被执行人而其无财产可供执行时,有另行起诉、直接执行夫妻共同财产、追加配偶三种债权实现方案。第一种方案使执行名义有沦为一纸具文的危险,第二种方案缺乏现有制度的支持。相较而言,追加配偶并非不可接受。若申请执行人主张债务系夫妻一方行使日常家事代理权或双方合意举债形成的夫妻共同债务,此二者情形符合扩张的正当性保障要求,追加配偶方案应被肯认;若其主张债务用于夫妻共同生活、共同生产经营,因夫妻共同债务认定比较复杂,不适于听证程序的保障要求,故应通过另行起诉予以解决。此外,法官于诉讼阶段结合案情释明债权人将债务人配偶列为共同被告,能尽可能避免以上困境产生。
The legitimate guarantee mechanism of the extension of subjective scope of enforcement force includes entity legitimacy and procedural legitimacy.The former requires the applicant to have a high probability of the entity rights of the third party,and the third party and the person subjected to execution have the same ownership of interests.The latter requires the extension of executive power to meet the requirements of procedural security before and after extension.A situation in which a couple is unilaterally b and the judgment puts the couple as the person subject to execution and the couple has no property to execute.There are three options for the realization of the claimant\s claims.They are additional spouses,separate lawsuit,and direct execution of the joint property of the husband and wife.The first option,the judgment is difficult to achieve the intended purpose.The second option,direct implementation is difficult to obtain institutional support.In contrast,adding a spouse to the execution process is not unacceptable.If the application executor claims that the debt is a joint debt formed by the spouse’s daily family agency or the mutual debt of both parties,which can meet the legitimate protection of the subjective scope of execution.These two scenarios can satisfy the legitimacy requirements of extension,so the additional spouse scheme should be recognized;If the application executor claims that the debt is used for the husband and wife to live together or to produce and operate together,the determination of the joint debt of the husband and wife is more complicated and is not suitable for the security requirements of the hearing procedure,so it should be resolved through separate lawsuit.In addition,the judge combined the case in the litigation stage to explain that the creditor listed the spouse as a co-defendant,which can avoid the above dilemmas as much as possible.
出处
《南京大学法律评论》
2019年第2期324-346,共23页
Nanjing University Law Review
关键词
执行力主观范围扩张
正当性保障
追加配偶
另行起诉
直接执行
Execution of Subjective Scope Extension
Legitimacy Guarantee
Additional Spouse
Separate Lawsuit
Direct Execution
