On The Study Of Settlement Agreement Reached Before Compulsory Execution Of Civil Judgment

Under the background of advocating meditation, settlement agreement reached after theeffective judgment and before compulsory execution emerged in a large number. As to thiskind of settlement agreement, there is no clear and definite legislative stipulation in China andlack of common understanding in theoretical or practical field. Although we have got somefragmentary exploration, we still have no systematic response on our legislation about therelationship between the settlement agreement and the original effective judgment.This paper combined the study method with analysis, comparison and connectionbetween theory and practice to demonstrate the nature of the settlement agreement, thereby tograsp the static relationship between the settlement agreement and the original effectivejudgment; and on the basis of summarizing the existing system in China, the author mainlyconcerns the issue of the relationship between the legal effect of a settlement agreement andthe legal effect of the judgment when there is a dispute processing mechanism. At last, thepaper suggests that we should no only to protect the rights of obliges, but also the rights ofobligors.The main body of the paper is more than thirty thousand words, and the paper is dividedinto five parts to research the settlement agreement:Part One: With the introduction and analysis of two practical cases, the author putsforward the topic, settlement agreements reached before compulsory execution, and thepractical confusion in dealing with them. Combining with the theory about the summarizedresearch results of this kind of settlement agreement, the author puts forward three problems:How to define the nature of the settlement agreement reached before compulsory execution?How to grasp the relationship between this kind of settlement agreement and the originalbinding judgment? How to provide relief to one party if the other party failed to perform thesettlement agreement? And how to perfect the system of the settlement agreement？Part Two: The definition and significance of the settlement agreement reached beforecompulsory execution. The author starts from the existing scholars’ definition of thesettlement agreement, combined with the basic features of the settlement agreement, to defineit and carry on the distinction between related concepts. After the analysis of controversyperspectives, the author brings order out of chaos to determine the nature of the settlement agreement as a kind of non-execution contract. And from the purpose of civil litigation system,the function of compulsory execution procedure and principle of autonomy of will, the authortries to demonstrate the correctness of this determination on the nature, and the meaning tostudy the settlement agreement reached before compulsory execution.Part Three: The extra-territorial study of the treatment about settlement agreementreached before compulsory execution. Extra-territorial countries and regions are mainly fromGermany, Japan and Taiwan Area of China. From the perspective of protecting the obligor,they give obligors right to bring dissent action on the ground the settlement agreement torelieve their rights.Part Four: Status quo of the research on the treatment of settlement agreement reachedbefore compulsory execution. Since the nature of the settlement agreement is qualified as a“non-execution contract”, the legal effect of which and effect of original judgment iscoexistent, and have no mutual compact. If the obligor and oblige have dispute over thesettlement agreement, the treatment in our country is lack of necessary remedy for the obligorfrom the point of legislation and judicial practice.Part Five: The perfection of the system about settlement agreement reached beforecompulsory execution. With enlightenment from the extra-territorial countries and regions andstatue quo in China, the author suggests to perfect the system of this kind of settlementagreement from two aspects: on the one hand, we should clear its effectiveness in the form oflegislation, on the other hand, we should endow obligor the right to bring dissent actionagainst the oblige, and specify the proceeding design for the action.