争论、厘清与界定:关于《民事诉讼法》中加倍支付迟延履行利息的思考

迟延履行利息主观上是对当事人不履行生效法律文书的惩罚,客观上是对债权人迟延履行期间损失的赔偿,公私法性质兼有之。其具体的计算方式是迟延履行金=包括本息、诉讼费等在内的金钱债权的全部×迟延履行期限同档次的中国人民银行同期贷款基准利率×法律文书确定的履行期间届满日到法院控制执行标的日之间经过的期间。迟延履行金的执行发动,应区分执行所依据的法律文书是否明确告知迟延履行利息制度,已经明确告知的,以当事人书面申请为准,未明确告知的,在释明的基础上以当事人书面申请为准。债务的具体清偿顺序,有约定从约定,无约定的采并还原则,按比例清偿法律文书确定的金钱债务与迟延履行期间的债务利息。

Reflections on doubling the payment of the delayed execution interest stipulated in the Civil Procedural Law

The delayed execution interest is subjectively the punishment of the party concerned who does not execute the valid legal doc- ument and objectively the compensation for the loss caused by debtor who delays the execution of debt, which has the nature of public law as well as private law. The specific calculation way is： the delayed execution fund equals to the sum including the principal and in- terest, legal fare times the same benchmark rate of the People~ Bank of China as the level of the delayed execution period times the peri- od between expiry date of execution stipulated by the legal document and the date of execution of objective controlled the court. The exe- cution of the delayed execution money depends on whether the legal document of execution clearly stipulates the delayed execution inter- est system. If it is clearly stipulated, the application of the party concerned prevails ; If not clearly stipulated, the application of the par- ty concerned governs on the basis of interpretation. The specific liquidation order of debt is determined by agreement if there is agree- ment ; If not, the debt is liquidated in proportion according to the money debt and the debt interest of the delayed period fixed by the le- gal document.