| 摘要: | 民事執行中假債權存在現象普遍，在台灣和中國大陸，民事執行中存在假債權現象，履不罕見。例如台灣法院進行房屋查封及拍賣過程中，常見關係人主張違建房屋查封錯誤、房屋由第三人使用抵債、租約一簽20年且租金均已付清等，一見即知的虛偽債權來干擾執行。若除去該等障礙後拍賣點交分配價款時，也可能出現假債權參與分配等事。單以三個地方法院（臺北、士林、新北）2013年民事判決為例，以關鍵字「分配表異議之訴」於司法院法學資料檢索系統搜尋，獲得相關判決共計187案，其中相當高比例為排除假債權參與分配而爭訟。
至於大陸之情形，舉例而言，浙江省黃岩地方法院執行局人員在網頁上的文章說明假債權現象的普遍與無奈，作者表示，從事執行工作兩年期間，協助領導辦理參與分配案件共14件，債權人口頭提出存在“虛假債權”的參與分配案件4件。該類案件執行依據無一被撤銷。又某法院之執行工作者心得報告，平均每次參與分配程序就涉及15人，甚至有的涉及當事人達123人。且並非少數個案人數特別多，而是在執行開始後，參與分配的債權人數及金額常有所增加。足見假債權不論是在大陸或是台灣，對於執行程序參與分配的影響，不容小覷。
本文乃聚焦法院分配表異議訴訟制度兩岸分析比較整理，並進一步探討兩岸假債權分配表異議之訴舉證責任之分配，以為假債權問題實務研究做出貢獻。
In civil execution, the existence of false creditors’ rights is common. In Taiwan and Mainland China, the existence of false creditors’ rights is very common in civil execution. For example, in the sealing up of houses and auctions conducted by courts in Taiwan, the relevant party commonly claims that the sealing up of the illegal building is a mistake, or the house is used by the third party for debt payment, or the lease agreement with lease terms of 20 years has been signed and the rent thereof has been paid off, etc. It is obvious that false creditors’ rights have been abused to disrupt the civil execution. Apart from such obstacles, upon the payment and disbursement of auction charges, false creditors’ rights might also be involved in matters such as distribution, etc. According to the civil judgment of 3 Districts（Taipei，Shilin and New Taipei）Court in 2013, when searching the legal material search system of the Judicial Yuan using “Litigation on distribution list objection” as keywords, a total of 187 relevant judgments are acquired. Among them, litigations on eliminating false creditors’ rights in distribution participation account for a fairly high proportion.
As for the circumstances in Mainland China, an example of this situation is that the personnel from the Executive Board of Huangyan District Court, Zhejiang Province published an article on their website to illustrate the common phenomenon of false creditors’ rights and their helplessness against it. The author indicated that during two years of civil execution work, he had assisted in handling 14 cases of distribution participation. In 4 of them, the creditor orally proposed the existence of “false creditors’ rights”, and none of the basis of execution of such cases has been revoked. Furthermore, according to the reports of court execution personnel, an average of 15 persons were involved in distribution participation proceedings every time, and in some cases as many as 123 parties were involved. In some individual cases, there were not many parties involved; however, after commencement of the executions, the number of creditors involved in distribution participation and the number of creditors’ rights cases increased. Therefore, it is obvious that, regardless of whether it is Mainland China or Taiwan, the impact of distribution participation on execution proceedings is significant and should not be underestimated.
This paper will focus on the summarization, comparison, and analysis of the distribution list objection litigation system of courts on both sides of the Taiwan Strait, and will further investigate the distribution of burden of proof in the false creditors’ rights distribution list objection litigation in both sides of the Taiwan Strait in order to contribute to the study of false creditors’ rights issues. |
