| The implementation of the contents of the effective legal documents is an important part of the whole judicial process in our country,and it is the key to further achieve the success of the parties or maintain the legitimate rights and interests of the parties.However,the execution of the effective legal documents made by the execution court has always been a difficult problem due to many reasons,such as the execute has no corresponding ability to pay,the execute evades execution,and the execution force is not strong.Therefore,in order to solve the problems in the process of implementation more conveniently and quickly,the settlement agreement has played an important practical role in the implementation.It is a system with contemporary Chinese characteristics.It was first explicitly mentioned in the Civil Procedure Law of the people’s Republic of China(Trial)(hereinafter referred to as "Civil Procedure Law(Trial)")in 1982,and has been continuously improved and improved by amending the Civil Procedure Law of China and further issuing relevant judicial interpretation documents of civil procedure law.By searching "execution cases,execution of settlement agreement" on "China judicial document network",the author can clearly find that execution of settlement agreement has been used more and more in execution cases this year.In recent years,the number of instruments involved in the implementation of settlement agreements in the implementation cases is 99841 in 2017,167881 in 2018 and 189934 in 2019.From these figures,there are a large number of cases in which the settlement agreement has been executed,which reflects that the executors and the parties pay more attention to the execution of the settlement agreement.Although the way to reach a settlement in the process of execution is more and more used to solve the execution cases in our country.However,because the current legal system is too vague in terms of the implementation of the settlement agreement,there are still disputes on how to solve the relevant problems in the judicial practice.Because the existing laws and regulations do not provide the corresponding dispute resolution measures.Therefore,this paper analyzes the concept,effect and the relationship with the original effective legal instruments of the settlement agreement,and on the basis of learning from the legal system of foreign countries,puts forward some suggestions on the content of the settlement in the process of implementation.For the current settlement system of our country,we should make clear the nature and effect of the agreement,endow the enforcement of the settlement agreement with limited force with the participation of the court,and improve the relief measures for breach of contract of the settlement agreement in our country,so as to solve the disputes between the two parties by establishing the litigation system of debtor’s enforcement objection and endowing the applicant with the right of uneasy defense The ultimate goal of.This paper mainly consists of four parts: the first part,based on the introduction of the historical development of the implementation of the settlement agreement,analyzes the current legal provisions when relief occurs in case of breach of contract,and then puts forward the existing problems: 1.Fail to clearly define the legal nature of the implementation of the settlement agreement,how to treat the settlement contract and the original effect in the implementation process If the party against whom enforcement is sought fails to perform the settlement agreement in accordance with the contract,the applicant for enforcement may apply to the court of enforcement for the resumption of the original enforcement procedure,or may file a new lawsuit with the court of enforcement on the basis of it.At this time,the applicant can exercise this option at will or it needs to be exercised on the premise of classifying the execution of the settlement agreement.3.The existing legal provisions only provide the remedies for breach of contract when the execute fails to perform the settlement agreement in the process of execution,but fail to provide the remedies for the applicant in case of breach of the agreement,which cannot protect the interests of the other party at this time.The second part is to analyze the nature and legal position of the settlement agreement.After summarizing the theories and relevant provisions of the nature of the settlement agreement reached in the implementation among scholars in and outside the domain,it further analyzes the effectiveness of the settlement agreement and the relationship between the settlement agreement and the original effective judgment,It is an introduction to the current law of our country on the remedy for breach of contract in the execution of settlement agreement,focusing on the consideration of the choice of relief channels when the applicant breaches the agreement after reaching a settlement in the execution process,and discussing how the applicant exercises the right of choice at this time;the fourth part is to provide advice on the improvement of the remedy mechanism for breach of contract in the execution of settlement agreement,It is mainly considered from two aspects: the perfection of the relief mechanism when the executor breaches the contract and the perfection of the relief mechanism when the applicant breaches the contract.The perfection of the relief mechanism when the executor breaches the contract is realized by strengthening the judicial review of the execution court on the execution of the settlement agreement and giving the applicant the right to exercise the expected breach and uneasy defense;The perfection of the relief mechanism for the application of the executor’s breach of contract is realized by reference to the application of the system of deposit and the establishment of the litigation system of the debtor’s objection。... |
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