- 期刊
金錢及物交付執行之間接強制
The Indirect Enforcement on Money and Property Delivery
摘要
我國之強制執行法並未繼受德國之一請求權一執行方法原則及間接強制補充性理論，關於金錢執行及物交付執行之執行方法，除採行直接強制外，併採間接強制，而未定其適用順序。間接強制非必比直接強制執行較不適合於債務人人格尊重之理念，其亦可能更加簡易、迅速、經濟地達成執行目的。在採行以拘束債務人人身自由為制裁方法之間接強制，只要債務人係有履行能力而無正當理由不履行，且於管收前賦予陳述等聽審機會，即無違反憲法上自由權、平等權及正當程序之保障。惟此等財產上給付之執行，既另有直接強制可資適用，法院即應依適切原則、損害最小原則及均衡原則善選執行方法。特別是顧慮債權人之權利性質、債權金額大小及債務人之資力、履行狀況等，就個別具體執行事件之特性需求，選用其一或併用二種執行方法，而為最適執行。
並列摘要
The Taiwan Compulsory Enforcement Law does not inherit from Germany the principle of ”one-claim, one-enforcement method” and the theory of ”supplemental indirect enforcement”. As for the method to enforce the money and the delivery of property, the Taiwan Compulsory Enforcement Law adopts both the direct enforcement and the indirect enforcement, without determining its applicable order of precedence. In comparison with the direct enforcement, the indirect enforcement does not less respect the debtor's personal rights. It may also achieve the goal of enforcement more easily, quickly and economically. One sort of indirect enforcement is to restrict the debtor's personal freedom as his or her penalty. Such indirect enforcement does not violate the freedom, equity right and due process protected by the Constitution, as long as it is imposed in the situation when (1) the debtor, without a just reason, should occupy the capacity to perform his or her obligation but refuses to do so, and (2) the debtor is given the opportunity to defend himself or herself or participate in the hearing or trial before he or she is taken into custody. However, since the direct enforcement is another alternative to enforce the property delivery, the competent court shall select its enforcement method in compliance with the principle of appropriation, the principle of causing the least damages, and the principle of interests balance. Furthermore, the court shall consider the feature and requirement of each specific enforcement case, including the nature of rights owned by the creditor, the value of subject matter debt, and the debtor's solvency and the status of performance, and select either or both enforcement methods in order to implement the most appropriate enforcement.