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A Study Of Third Party Action Against Execution

Posted on:2016-05-17Degree:DoctorType:Dissertation
Country:ChinaCandidate:C M CaoFull Text:PDF
GTID:1226330461963085Subject:Procedural Law
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The third party action against execution is known as outsider’s objection to execution in our civil procedure legislation and judicial practice, is a outsider relief system established in China’s civil procedure law amended in 2007. After the judicial practice in recent years, our country’s third party action against execution basically changes the chaos of judgment and execution in the original third party against execution, basically solutes the relief problem infringement of the third substantive rights as a result of the implementation chaos. But because of the lack of set defects and judicial practice in our country’s third party action against execution, it inevitably brings certain adverse consequences. How to study China’s third party action against execution system as a whole, how to continue to reform and perfect the China’s third party action against execution system, this is still a serious problem we must think about. Given that, the author chooses the third party action against execution as the research object. This paper comprehensively and deeply studies the third party action against execution, firstly, outlines our country’s third party action against execution is an outsider litigation of executive objection, mainly discusses two controversial problems in our country’s third party action against execution; secondly, discusses the legal nature of third party action against execution, suggests for our country’s third party action against execution to qualitative for the action of formation; Once again, based on our country’s entity right system and judicial practice, analyses of the reasons and procedure of third party action against execution; Finally, puts forward to improve the principles and suggestions of our country’s third party action against execution. Except the preface and the conclusion, this paper is divided into five chapters.The first chapter outlines the third party action against execution system,outsider’s litigation of executive objection, it refers to the third party enjoyed rights enough to exclude the enforcement for enforcement agency to enforce the standard for executing creditor, for excluding the improper enforcement act of enforcement agency, to perform the creditor as the defendant or the creditor and debtor as joint defendants, requests the execution court to stop the enforcement of subject matter. There are two bigly debatable problems about our country’s third party action against execution; that is the rationality of preposition of enforcement agency and division between the procedure for trial supervision and the third party action against execution. For the former, there although is the confusion between judgment and enforcement about preposition of enforcement agency to a certain extent, but it still is relatively reasonable, it should be improved; for the latter, because there are internal contradictions in the theory and logic and no effect in practice about the outsider retrial application, From long-term consideration, the division between the procedure for trial supervision and the third party action against execution should be abolished, if the outsider, the party don’t accept the judgment of the enforcement agency, no matter whether is associated with the original judgment, should bring the third party action against execution to the enforcement court. This chapter also analyses the difference between our country’s third party action against execution and executive act objection, outsider’s retrial application, third party discharging lawsuit, the litigation of executive objection of the party applying for enforcement, the debtor objection lawsuit and other easily confused system.The second chapter discusses the legal nature of the third party action against execution, How to understand its legal nature,is the primary problem to be solved to study the third party action against execution, Since the third party action against execution is established in Germany civil procedure law, the theory of payment litigation, confirmation litigation, formation litigation and many theory comes into being. These theories have not emerged, rise, demise in accordance with time, but coexist with each other, compete with each other, it is so far no conclusive, our country more scholars support the theory of payment litigation and relief litigation, but less scholars support the theory of formation litigation and command litigation. The complexity of the legal nature of the third party objection litigation is that factors need to consider is too many, any one of the above-mentioned viewpoints is certainly reasonable, explains some problems about the third party objection litigation, and there are some defects, is difficult to explain other problems about the third party objection litigation. The legal nature of the third party objection litigation, only is the theory being the most able to reflect the essential characteristics of the third party objection litigation, we can not hope to choose a view can solve all problems. This paper argues that the only function or purpose of the third party action against execution is to remove the compulsory execution, the right to request compulsory execution by execution creditor enjoys is abstract right to request in nature, the object of action of the third party action against execution is the right of objection in civil suit law, the request of the third party action against execution is stop compulsory execution on the subject matter of implementation, for these four reasons, starting from judicial practice of our country’s third party action against execution, the theory of the action of formation should be adopted, our country’s third party action against execution is the action of formation in nature. As for the questions about the theory of the action of formation, it can be overcome the proper program system.The third chapter analyzes the reason of the third party action against execution. According to the law concerning the third party action against execution in civil law countries or regions, the third party files the lawsuit, must have enough to exclude the enforcement of rights, this right is called the reasons of the third party action against execution. According to provisions of 14 th article of our country’s "executive interpretation", the reasons can be divided into two types: one is ownership; other two is the other rights enough to stop transfer or delivery of the subject matter of implementation. Because of the large civil substantive rights system and the length limit, this paper selects the ownership, security interest, usufructuary right, possession, leasehold, the right of transfer of registration and the main reasons. This paper regards whether specific substantive rights can possess the effectiveness excluding enforcement, at least with related to the civil rights connotation, the applicable cases of the substantive rights, the type of compulsory execution behavior. Specific substantive rights can produce the effectiveness excluding specific execution behavior only under special circumstances; this can be called the three specific principles. There are not rights that absolutely can exclude enforcement under any circumstances, even as strong as the ownership, it may not exclude enforcement under certain conditions; there are not rights that absolutely cannot exclude enforcement under any circumstances, even as weak as creditor’s rights, it may exclude specific enforcement behavior under certain conditions. Generally speaking, if the right that third party enjoys is absolute rights such as ownership, security interest, usufructuary right and so on, it can produce the effect excluding enforcement in general; if the right that third party enjoys is specific creditor’s rights such as leasehold, the right of transfer of registration, it can produce the effect exclude specific execution behavior under special circumstances.The fourth chapter discusses the procedures for handling the third party action against execution. The procedure is the process that should have on particular program elements and judgment of the third party action against execution when the third party mentioned objection lawsuit. Program elements include the subject, the time element and other elements of the third party action against execution. Among them, a proper plaintiff generally must meet the following three conditions: he is not the party affected by the expansion of executive power and executable judgment, he is the party of judgment of rejecting the execution objection, he enjoys a compulsory right enough to exclude compulsory execution on the subject matter of implementation; about the applicable defendants, the third party files objection litigation which defendant is the creditor or the creditor and debtor as a joint defendant; about the time element, the third party files objection litigation when compulsory execution procedures start before the end, after the end of compulsory execution procedures, the third party cannot file it. About hearing, the third party claims he enjoys substantive rights enough to rule out the enforcement, it should bear the burden of proof on the legal facts to support the substantive rights; it should also be applicable limit about admission rule in the third party action against execution, even the debtor accept the case facts about substantive rights stated by the third party, the burden of proof related facts about the third party cannot be avoided. About the referee, if the third party’s prosecution is not legitimate, requirements of litigation is lack and cannot be corrected, the prosecution should be dismissed by the court; if the third party’s legal prosecution includes confirmation litigation and objection litigation, the court should respectively make decision according to confirmation request and object request.The fifth chapter proposes improvement of our country’s third party action against execution. The principle of unity of justice and efficiency and the principle of balance of three party’s interests is two guiding principles to improve our country’s third party action against execution, about the former, we must pay more attention to the unity of justice and efficiency on program design and perfection of the third party action against execution, while ensuring a fair trial, as far as possible to shorten the trial period, as soon as possible to make judgment to the dispute of the legal relationship, do not affect the execution behavior or restore normal state of the subject matter; about the latter, in the design and improvement of the third party action against execution, we do not only consider the third party or one party’s interest, and ignore the other two party’s interests, must obtain maximum benefits based on the balance of interests of the three parties. To perfect the third party action against execution, the article puts forward the following suggestion in five aspects: one is to standard requests of our country’s third party action against execution, prohibit the parties alone to file confirmation litigation; two is to refine reasons of our country’s third party action against execution, raises the third party enjoy ownership, ownership reservation, trust property right, guarantee right, usufructuary right, the right of lease, the right of transfer registration etc. on the subject matter, these rights can produce the effect excluding specific execution behavior under certain conditions; three is to perfect trial procedure of our country’s third party action against execution, puts forward the solutions on the issue of compensation to execution error; four is to improve the convergence it and another confirmation litigation filed, if the third party files another confirmation litigation in hearing of the third party action against execution, them should be mandatory consolidated hearing; the five is to establish the prevention mechanism of the abuse of the third party action against execution, prevent false action of confirmation, prevent the abuse of objection right.
Keywords/Search Tags:action of objection, action of confirmation, claim, right of objection, the subject matter of implementation
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