Research On The Opposition Action Of The Third Person

The civil enforcement is a procedure in which the public power of the nation is used and private rights are realized though the power of the civil enforcement. To realize the rights of the creditor, the enforcement branch can only in form examine and judge the ownership of the enforcement subject by its appearance in practice and in theory. However, in highly-developed modern society of the market economy, the appearance rights conferred by legal public summons usually differ from actual rights.Once this happens, the enforcement by the enforcement institution on the basis of form judgement will become improper acts violating substantive rights of the third person. Have an interest, there must be relief. In order to give the third person relief whose substantive rights are violated by the enforcement institution through improper enforcement, a system of substantive enforcement relief must be established. The opposition action of the third person is just a kind of substantive system of relief, in which the third person has sufficient rights to stop the enforcement of the subject matter against the enforcement claim and thus begs the enforcement institution to quash the enforcement of the controversial subject matter.As the action of deriving from the enforcement procedure, the opposition action of the third person is a new special type of suit different from the ordinary suit. Relying on this logical judgement, this essay treats the opposition action of the third person as research contents, and analyses fully and systematically the differences in special procedural problems and requirements between the opposition action of the third person and the ordinary suit through the comparative study, the combination of theory and practice and by means of legal construction,etc. The essay with about 120 thousand words consists of six chapters besides the preamble and concluding remarks .The first chapter analyses the jurisprudence base of the opposition action of the third person. My conclusion is that the unavoidable improper enforcement act constitutes the factual base of the opposition lawsuit of the third person. The theoretical base of building the opposition lawsuit of the third person consists of three parts: the theory of protecting the right of action, the character of the enforcement power and the tenet of the separation of trial and enforcement.Chapter Two analyses the nature and function of the opposition action of the third person. Besides,the relationship between the opposition action of the third person and the other relief procedure of enforcement is discussed in this chapter. As to the nature of this suit, the author introduces different views on the nature of the opposition lawsuit of the third person, such as the theory of action of formation, of action of grant and of action of identification. The author makes comments on those views and thinks that the opposition action of the third person is the combination of action of identification and action of formation. As to the function of that action, the author briefly states its relief of rights, debate settlement, limitation and supervision, and its harmonizing the relationship of power comparison between the nation's power of civil enforcement and rights of the third person, the function of balanced protection of the enforcement creditor , debtor and the third person included. It is pointed out here that the opposition action of the third person is the special procedure of resolving the disagreement on the rights of the subject matter. It is not allowed to bring about another identification action and grant action in the process of enforcement.In Chapter Three has done research on the special issues of the formation of the opposition action of the third person, analysing the action position of the plaintiff, the defendant and the enforcement debtor who is not a defendant in action of the third person.The author also explores the different types of action of the third person under different circumstances and expound and prove the action cause, action duration, and the scope of application.In Chapter Four the author analyses in details the special problems and requirements in the opposition action of the third person, which concerns widely the initiation and acceptance, jurisdictional court, the responsibility and standard of proof, the influence on the enforcement procedure, the trial procedure of the enforcement procedure and the decision and effect of the the opposition action of the third person,etc.On the sufficient theoretical basis of above researches, the author further gives series of advice on the perfection of this system.