摘要
基于对现行法的严格解释，“吴梅案”中确认的规则只是对“二审期间达成的和解协议是否可以阻碍生效一审判决的执行”问题作出了否定回答，并未将民事诉讼法第230条的效力扩张到二审和解协议。对“被告履行和解协议后原告申请继续执行原生效判决”的案件，应当允许继续执行。此种规则可以拓展到其他判决后和解的处理。执行中的和解异议不能纳入执行异议中处理。如果允许被执行人另行起诉，可能会带来新判决与原执行行为的冲突问题。对此，现行法尚无法解决。
Basing on the exact interpretation of the law in force, a conservative understanding should be selected as to the norm established by the ＂Wu Mei＂ Case, that is, the Case only gives a negative answer to the question whether the compromise outside action in the second instance can prevent the enforcement of the efficient judgment of the first instance or not, and the Case has not expanded the effect of Article 230 of the Civil Procedure Law to the compromise outside action in the second in- stance. The normal property of Article 230 of the Civil Procedure Law determines that it cannot be ex- panded to other fields besides the compromise in the enforcement procedure. Another reason to sup- port this conclusion is that, according to the law in force, the enforcement organization should not re- view the performance of the compromise in the second instance when placing a case on file for enforce- ment. This conclusion can be expanded to the handling of other compromises after judgment besides the compromise in the second instance. Thus, if the defendant has performed the compromise in the second instance but the plaintiff still applies to enforce the efficient judgment of the first instance, such application should be allowed. On the contrary, the person against who the judgment is being executed can formulate his demurral ac- cording to the law in force, but it should be admitted that this means of redress has its fundamental defects to handle the substantial disputes due to the compromise after judgment. If the person against whom the judgment is being executed is allowed to bring a new action, the new judgment may conflict with the original act of execution, which cannot be resolved by the law in force.
出处
《法学研究》
CSSCI
北大核心
2013年第1期159-168,共10页
Chinese Journal of Law
基金
复旦大学三期重大项目“维护社会公平正义的司法制度建设研究”的阶段性成果
关键词
民事诉讼
判决后和解
执行异议
吴梅案
civil procedure, compromise after judgment, demurral in the enforcement, the ＂WuMei＂ Case
