A Study On Effect Of Out Of Court Settlement Agreement In The Appellate Trial

The system of adjudication at the end of the second instance,combined with any litigation stage,which allows the parties to withdraw the case because of the settlement,provides the possibility of coexistence of the settlement agreement and the judgment of the first instance.This coexistence of the situation itself does not hinder the realization of the rights of the parties,but after the trial stage of the incubation period,to the implementation phase will be highlighted contradictory.If the parties are about to perform,then everything is right,and once one of the parties breach of contract,in the way of relief,the parties and the implementation of judge are same facing the choice between the settlement agreement and the first instance verdict.However,the remedy for the covenant has actually become difficult to make a simple choice because the settlement agreement has changed the scope of the power of first instance judgment.In 2012,the Supreme Court established the guiding rules of "one party not fulfilling the settlement agreement and the other party applied for the execution of the judgment of the first instance,and the people's court should support" through the "uplift" approach,with the intention of ending this "irregular" state.It is a pity that this continuation of the solution to the implementation of reconciliation does not take into account the difference between litigation and reconciliation.The parties are in breach of the implementation phase of the settlement agreement,to resume the implementation of the verdict,is based on the theory and practice of double considerations.Theoretically,the effective judgment shows that the relationship between rights and obligations of both sides has been a "indisputable" unequivocal evaluation of public rights and obligations,starting from the prestige of the ruling court,both private business can not confront the court for the public;Reconciliation is based on the concessions of creditors,and breach of contract are mostly debtors,resumption of execution of the effective judgment is correct.But this dual consideration placed in dealing with the settlement agreement out of litigation andthe verdict of the conflict,but not "one size fits all".In theory,in the second instance proceedings to achieve the settlement outside the court,due to the parties to the appeal,the relationship is not because of the verdict to be the "final word",only because of reconciliation and give up the right to argue.it is difficult to say that the first instance verdict is the final relationship between the rights and obligations of an accurate assessment.Moreover,in practice,the abandonment of the settlement agreement is not always "get cheap" debtor.After changing some of the specific conditions of the "Wu Mei case",the legitimacy and appropriateness of the referee rules will be shaken.Through the specific case analysis,we can see that the implementation of the first instance judgment is not always the "comprehensive" protection of the person,but may create a profit opportunity for the dishonest,breed speculative space.In simple terms,in the battle of the creditor and the debtor,there is no shield to the debtor,and the resumption of execution is not always the ideal spear of creditors.From the protection of the legitimate interests of the parties to the settlement agreement(including the interests of the entity and the interests of the proceedings),the need to address the civil appeals trial reached by the settlement agreement on the effectiveness of the first instance of the special force,to strengthen the effectiveness of the settlement agreement.It is very difficult for a single remedy to meet the needs of the parties.Need to reconstruct the trial and execution of the program to achieve the relief of the promisee.