破解债务人“履行难”问题研究法律文书生效后的提存探析

Solution to ''Difficulty in Performance'': Research on the Escrow System after the Legal Instruments Coming into Effect

  • 摘要: 对法律文书生效后债权人无正当理由拒不接受债务人履行的规制途径,目前有两种观点:一是债务人申请强制执行,二是债务人通过提存代为清偿。债务人申请强制执行在逻辑上难以自洽,通过提存制度解决则不存在理论上的障碍。但我国对提存制度的规范位阶低、内容简略。除应在民法典中完善提存规定,并借鉴域外立法制定单行《提存法》之外,还需考虑经生效法律文书确定的债权债务的特殊性,以司法解释明确以执行法院执行局为法律文书生效后债务人提存的法定提存机构,并对法院提存涉及的特殊事项做出规定。

     

    Abstract: There are currently two different opinions on the way to rule and regulate those obligees who refuse to accept obligor's performance of obligations without justified reasons after the legal instruments coming into effect, one is permitting obligor to apply to the People’s Court for execution, the other is allowing the obligor to pay off debts by escrow. The obligor applies to the People's Court for execution seems to be against logic of law, but solving this problem by escrow does make sense. However, the regulations about escrow in China is brief, in addition to improving the regulations about escrow in Civil Code, we can learn from foreign legislation to enact a Escrow Law. Furthermore, considering the particularity of rights and obligations as determined in an effective legal document, it’s necessary to enact a Judicial Interpretation to make it clear that the Executive Board in the Executive Court is the statutory escrow institution after the legal instruments coming into effect, and to prescribe special matters about escrow in the People's Court.

     

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