Authors: Cai Qingfeng   Ge Haibo Release date: 2003-11-26 14:54:02

    Some town government under Su project funds 32000 yuan has been in arrears outstanding, 2000 Su sued to the court asked the government to repayment. After mediation by the court, the town government in 2001 March to pay off the arrears. Overdue, the town government has not repayment, Su will apply to the court for compulsory execution. In the implementation process, the town government repayment 20000 yuan, IOUs issued to more than a certain amount, the Soviet Union accepting IOUs, executive case report. When sue a holding IOUs to the town government claims, the government refused to pay. Therefore, Su again sued for repayment, and asked to pay a surcharge for delay of performance. After the case go to trial.

    There are two kinds of views on the case.

    The first view is that: the case of execution is not implemented. According to one thing can't suit principle, should the court rejected prosecution, the right to apply for resumption of execution; the second kind of view: the case should be a decision support Su litigation request. Because the town government to stand on the arrears IOU, has formed the new debt. The plaintiff sue a right according to debt new relationship sued for repayment, the plaintiff's claim should be supported.

    I agree with the second view, which support the plaintiff's claim. There are four reasons:

    First, this case involved the relationship of rights and obligations is the new relationship between rights and obligations. Genetic causes debtor creditor relationship reflected the IOUS is different from the original creditor debt. Specifically, the relationship between the rights and obligations of the parties is due to the original debtor does not fulfill their obligations according to the contract of the construction project produced on, formed the ious are formed based on execution of both processing claims and debts of the facts. This fact and the non performance of contractual rights and obligations of the contract is the fact that different. Therefore, the legal relationship between the two kinds of debt relationship is not the same fact caused, the town government played ious forming debts new relationship between the parties concerned. Obviously, that should be the incident no longer principle reason to dismiss the lawsuit is untenable.

    Second, recovery of execution ious does not necessarily cause the execution of the program. In accordance with the relevant legal interpretation, reconciliation in the implementation of the case, the person to be enforced is not in accordance with the settlement agreement, the applicant may apply for resumption of execution. The execution reconciliation case should implement the settlement agreement, expressly agreed payment time limit and method execution performance, when the person subjected to execution is not in accordance with the agreement to fulfill its own initiative, to apply for the right people, executives should resume execution. But in this case only the town government to an IOU Su Li, not only has the characteristics of the settlement agreement in form, but the content does not reflect the nature of execution reconciliation agreement. So it is hard to say in this case is the implementation of the settlement agreement ious. Step back and say, even the execution reconciliation agreement, also does not inevitably lead to perform recovery. Restore the prerequisite is the implementation of the rights of applicants, only the right people to apply to the court for a court to resume execution resumes execution. In other words, the right to the debtor fails to perform the agreement, should be how to deal with the free punishment right. If the right people without the application resumes execution, but choose to prosecution, the court can only respect the choice of the parties.

Third, the case has not been possible to resume execution. The case has been the implementation of the end, the end of the case is different from the suspension of the case, is not to resume execution. If you want to continue execution must also pass the trial supervision procedures, first remove the end of ruling, to continue. In fact, the settlement agreement is the litigant right of disposition behavior, the court has reason to believe that the settlement agreement between the parties after the establishment, implementation of the rights and obligations have been properly solved. So the end did not violate the provisions of existing laws, and in accordance with the procedure for trial supervision to undo the termination of execution case, then resume execution and no basis.

Fourth, we should respect the choice of the parties. In this case, the Su himself chose to sue, this shows that Su thinks the rights and obligations of enforcement cases has ended. Relationship of debt in the case is a new relationship between rights and obligations, so sue a selection of prosecution is on the right of disposition by the court, should respect. There are many ways in the protection of the rights of choice, protection method is usually chosen by the parties after careful consideration of the way, the court should give full respect to the selection. In this case, Su to new ious sued the town government in conformity with the substantial conditions and formal conditions, the appeal shall be supported.

This case involves understanding and understanding the problems of implementing the settlement agreement, the settlement agreement in a kind of what kind of position in the implementation is worth discussing. The essence of the pacification agreement between the parties is the rights and obligations of the agreement, the court is not participated in or presided over the executive reconciliation, so the court's position is detached. The court should respect the agreement of the parties, because it is the right way to deal with the parties, no matter how the agreement, as long as it does not violate the provisions of the law, the settlement agreement shall is effective, the court can not authority to intervene. In this sense, the parties reached a settlement agreement, is actually set aside public force to solve the problem, the implementation of the court can therefore end, executive case can terminate execution. But to do so, but also to the applicant brings potential risks, i.e. when the person subjected to execution fails to perform the mediation agreement, the court can not be carried out according to the original execution basis, the party also can only find other ways of relief. Let the court for settlement after the end of the court case, it is difficult, the court into a dilemma. Current practice is usually the effect neither sure reconciliation agreement, also do not deny the effect. The party does not perform the agreement, the court did not terminate the execution, the right to apply for resumption of execution, you can resume execution. But the court has end cases, enforcement cases restored conditions have been lost, the right person should be prosecuted. This is not unfair to the right people: on the one hand, the rights of people to protect their rights by the prosecution, the consequences on the other hand, it is the right of people in the implementation process of self exercise. 

    Author unit: Jiangsu province Suining County Court       Source: China court