摘要
新修的民事诉讼法以及《民诉法解释》通过分置的立法技术确立了案外人异议之诉与案外人申请再审程序之间的"事项"分置关系,确立了案外人异议之诉与第三人撤销之诉之间的"时间—事项"分置关系。综合实体争议与执行程序交叠时的特殊价值考量、程序安定性、既判力维护、案外人实体权益保护等多重因素,上述分置关系具有合理性。《民诉法解释》允许合并审理案外人同时提出的确权的请求,却留下案外人另行起诉的未解"残局"。当下案外人执行程序救济体系在其日益精密、复杂的同时也日益成为高成本体系,应重视低成本程序用尽规则。
By the law-making technique of allocation, the new civil procedure law and ＂explanation for civil procedure law＂ has established the relationship of subject allocation between pedigree resolving of objection to execution from the third party and re- heating by a person other than those involved in the Case, the relationship of ＂time-subject＂ allocation between pedigree resol- ving of objection to execution from the third party and the third party opposition. Taking special values balance involved in the cross connection between subject controversy and execution procedure, procedural stability, protection to res judicata, protection to subject benefit of a person other than those involved in the case, these allocation relationships are reasonable. ＂Explanation for civil procedure law＂ allows the courts to combine the right conformation demand of the outsider of litigation with his demand to hold back the execution. However, there is no definite rules for such litigation alone. At present, as the system of execution relief for outsider of litigation becomes more and more elaborately and complex, the costs of the system become higher and higher. Thus we should pay more attention to low-cost procedures.
出处
《法学论坛》
CSSCI
北大核心
2016年第4期25-35,共11页
Legal Forum
基金
中国博士后科学基金第7批特别资助研究项目(2014T70172)
中国博士后科学基金第56批面上资助研究项目成果
关键词
分置
合并
案外人异议之诉
案外人申请再审
第三人撤销之诉
allocation
combination
pedigree resolving of objection to execution from the third party
reheating by a person other than those involved in the case
the third party opposition
