民事执行和解协议违约救济研究
Research on the Remedy for Breach of Settlement of Reconciliation in Civil Enforcement

执行和解作为极具中国特色的创新制度，通过当事人合意达成并履行执行和解协议来解决“执行难”问题，在实践中发挥了重要作用。尽管执行和解制度的创设目的在于把好定分止争的最后一环，但当事人达成执行和解后，拒不履行协议，或不全面履行协议的状况愈演愈烈。2018年出台的《执行和解规定》解决了执行和解协议的诸多问题，但是仍然存在协议性质与效力不明确，法院处理违约救济做法不一、当事人违约救济选择权规定模糊等问题。本文通过案例引入揭示并总结各地实务中处理执行和解协议纠纷时存在差异与分歧，对执行和解协议的性质和效力各个学说的总结与分析，探讨各学说模式下救济方式选择的优势与缺陷。最后拟从实体法角度对常见的执行和解协议作区别划分，以期迅速高效地解决再生争议问题。
As an innovative system with Chinese characteristics, the system of reconciliation in enforcement has played an important role in practice by solving the problem of \"difficulty in enforcement\" through the parties agreeing to reach and perform a settlement of reconciliation in enforcement. Although the establishment of this system aims at settling disputes, the parties refusing to com-plete the settlement after reaching it or do not completely perform the settlement is becoming more and more serious. The Provisions on Reconciliation in Enforcement issued in 2018 solved many problems in the performance of the settlement of reconciliation, but there are still some problems, such as unclear nature and effectiveness of the settlement, different remedies for breach of the settlement handled by the court, and vague provisions of the parties’ options of remedies for breach of the settlement. This paper introduces cases to reveal the differences in the settlement of enforcement disputes, analyzes various theories on the nature and effectiveness of the settlement of reconciliation in enforcement, and discusses the advantages and disadvantages of the remedy mode under each theory model. In the end, this paper makes a distinction between common settlements of reconciliation in enforcement from the perspective of substantive law to solve the problem of re-generation disputes quickly and efficiently.