On The Predicament And Way Out Of Implementing The Settlement Agreement

Reconciliation is a kind of dispute resolution method which is deeply influenced by the Confucian thought of "harmony is the most precious".The so-called execution reconciliation,as the name implies,means that both parties reach a reconciliation agreement on execution related matters at the execution stage and change the contents of rights and obligations determined by the effective legal documents in accordance with the law.Since 1982,the execution and reconciliation system has been included in the civil procedure law of our country.It has the advantages of reflecting the consent of the parties,quickly realizing the implementation,easing the contradictions between the parties and maintaining the judicial authority.It is highly expected that it can be widely used to solve the problem of "difficult execution" in the later judicial practice.However,in the practice of execution,there is indeed a high rate of execution and settlement,and the high performance rate and resolution rate expected by many people do not appear subsequently.This phenomenon has something to do with the ambiguous state of the nature and effectiveness of the execution and settlement agreement,which is the core of the execution and settlement system.Although after more than 30 years of development,the relevant laws and regulations for the implementation of the reconciliation system are constantly improved,and the theoretical research and discussion on the system has never stopped,there is still no clear conclusion on the nature and effectiveness in the implementation of the agreement,which also leads to the implementation of the reconciliation system in practice has not been effective.On the basis of existing legal provisions and theoretical theories,this paper expounds the effectiveness of implementing the settlement agreement from the following four parts,in order to clarify the disputes existing the settlement agreement and the system,and further explain the nature of implementing the settlement agreement and its due effectiveness:In the first part,through the analysis of the factors affecting the definition of the effectiveness of the settlement agreement,including the concept,establishment and effectiveness of the settlement agreement,the nature of the dispute,the authorconcludes that of the settlement agreement is an act,with the nature of private law and procedural law.The second part,through the overseas implementation and reconciliation of the relevant system of the investigation,to think about worthy of our thinking and reference.For example,Germany defines the settlement agreement as a litigation contract,which will simplify the selection of procedures after the settlement.Japan has restricted the types,frequency and limits of reconciliation in the course of execution,which will propel the progress the execution process and block the way for the person subjected to execution to delay the settlement agreement.The third part uses charts and practical cases to analyze the difficulties existing in the application of the effectiveness of the settlement agreement,including the high rate of the implementation of the settlement and the low rate of the completion of the implementation,the role of the judge in the implementation of the settlement,the non-effectiveness of the settlement agreement,the inconsistency between the settlement agreement and the previous legal relationship,the low binding force of the settlement agreement,and analyzes the causes of the difficulties.The fourth part,on the basis of the above analysis,discusses the ways to complete the effectiveness of the settlement agreement,including redefinging the relationship between the settlement agreement and the previous effective legal document as an "alternative coexistence relationship",assigning special enforcement force to the execution of the settlement agreement according to the intention of the parties,and balancing the interests of the parties by establishing the debtor's objection litigation system.