On The Suit Of Objection During Civil Enforcement

On the definition of the action of opposition to execution, the present viewpoints in theory can be summarized as "extensive view", "medium view" and "intensive view". The common denominator is that all the three views, from the perspective of the remedy for execution, point out that the action of opposition to execution is intended for the tangible interest and right during the procedure of execution. But the "medium and intensive views’ parameter of subject in the action is relatively narrow, which cannot completely preserve the interest of litigants and interest-related party. The extensive view’s parameter is comparatively reasonable, but there still exists some defects, such as expressive problem. Through weighing up a variety of viewpoints, this thesis is going to define the action of opposition to execution as a legal rule that when the tangible interests of creditors, debtors and the third party are probably infringed or have been infringed as result of the improper execution from the court, they can file a lawsuit for relief. It belongs to civil procedure but has the specialty from the ordinary civil procedure. Essentially different from the opposition to execution, this action has dual functions and special purpose, which is the perfect exposition of the relationship between substantial law and procedural law. As compared to this internal definition, the civil action of the opposition to execution consists of the third party’s opposite action, the debtor’s opposite action and the opposite action of participant in property allocation. In conventional theory, the action of opposition to execution only encompass the third party’s opposite action and debtor’s opposite action, except for the opposite action of participant in property allocation. This system can be called dichotomy. As aforementioned, the civil action of the opposition to execution consists of the third party’s opposite action, the debtor’s opposite action and the opposite action of participant in property allocation. The reason for this division is that they have many common denominators. Firstly, all of them are executive relief in substance. Secondly, they all belong to civil action. Thirdly, all of them derive from the procedure of execution and fourthly, they’re produce by the opposition from litigants and interested persons which is induced by the improper execution. It is these common denominators that provide the criteria for the parameter of the opposition to execution whereby they determine the framework of the system of the action of opposition to execution.What should be enhanced is that the part of the important theory that is concerned about the lawsuit of implementation’s objection is its nature, which is the precondition to instruct the whole legislation in the lawsuit of implementation’s objection and which is the key to design the entity relieving implementation system reasonability. In tradition, the civil lawsuit is divided to giving sue, confirming sue and forming sue. However, the theory about the nature of the lawsuit of implementation’s objection have many kinds, which contain "Forming sue theory", "Confirming sue theory", "Giving sue theory", "Command sue theory", "Relief sue theory" and "New theory of forming sue". From a special point, every theory has some rationality while it lacks some autonomy. In the view of its dual nature character, the lawsuit of implementation’s objection, which can not be reasonable explained by the traditional types, has the characters belonging to "confirming sue" and "forming sue". The whiter calls these character as "Duplicity sue", instead of "Relief sue theory", and "Duplicity sue" is a extended area of traditional types and is more exactly than "Relief sue theory". It is no doubt that the "Duplicity sue theory" is only a thought of attempt, which needs to be paid more attention with related theory’s development.The basis of law principle of confirming the lawsuit of implementation’s objection is, in the practice of implemental action, unreasonable implemental action’s existing brings out the dispute about the right-obligation between parties to a lawsuit or parties closely bound up with a lawsuit. Though having been starting the implemental procedure, the solution to this dispute is more important. The best suitable way is litigation, which means the lawsuit of implementation’s objection is the best way to deal with the entity right-obligation dispute in the implementation procedure.Third objection of v.,which is called An Wairen objection in our country, means that in the enforcement process the third person other than the parties consider themselves having the substantive rights of the implementation of the subject matter and the enforcement actions of enforcement authorities damaging their rights and interests,so they could request the court to the substantive rights and obligations of the dispute referees in order to exclude the implementation of the subject matter of the enforcement action. Overview the provisions of the third party objection v. in Common Law and Civil Law countries or regions appear morphological diversity because of the legislative style, cultural traditions in different country and many other factors. In view of our similar traditional system of Civil Law, in time of improving our third objection v., we could learn and absorb the experiences and practices of Civil Law countries or regions. In particular, China Taiwan and the mainland have the same root,blood,cultural concepts,historical traditions and cultural background therefore,Taiwan’s system of third objection v. especially worthy of reference.The suit for outsider of a case in our country has went through a blank period before the revise of China Civil Procedure Law, a sprout period after it, then a embryonic period with the bring-outing of《Interpretation Of Execution》(Interpretation of several Issues of execution process on the use of the《PRC Civil Procedure Law》by Supreme People’s Court), referred to as《Interpretation Of Execution》.Based on the current interpretation of Civil Procedure Law Article 204, law scholars believe that China has established the suit system of relevant outsider,but the kind of suit must be depend on the fact that the outsider raises an obviously reasonable objection to the object of the execution, that is on condition that the outsider must raises the suit, which badly limits the function of the system, meanwhile creatively mislead the come-out of other opposite suit-------The creditors request permission to implement a compulsory execution.But it cat not resolve the dissension with a package solution, then fail to execute effectively. In addition, the provisions of article 204 confound the function between the objection suit and the procedure of retrial supervision, what’s more, the law stipulates that is too simple, operability is not strong.《Interpretation Of Execution》to a certain extent, offsets the defects of the objection suit of outsider. However, it is only an of the interpretation of implementation, not a law, is not able to overcome the shortcomings of its own, so it can not basically solve the flaw of the present objection suit. Because of its flaw, we must improve it. Firstly, we should allow the outsider directly raise a suit to object the execution, at the same time, peel off the procedure of retrial supervision. Secondly,we should define the available field,make the reasons concrete, rule the objection times, affirm the Trial Court as the division to judge. Apart from those, we also need to clear related matters, such as specific objections to the subject, common action, specific proceedings, the magistrates and their legal effects, trial periods and the jurisdiction by the forum level, which require different analysis with specific conditions.Enforcement, from start to finish to go through a period of time,during which the implementation of the payment based on claims occurred a lot in the situation of physical changes.for example,in the implement of the program,when the bond has been liquidated or offset, the creditor may still hold the executive pursuant to apply for enforcement. At this moment, the claim and the actual right of creditor which set out on the executive is not consistent. There’s no way of knowing whether the right record on the executive and current line conform or not. Even if pizhixingren prove that the situation of which determined bond has been liquidated or offset, the agencies can’t reject the executive request of creditors. According to this, each country offered helps to creditors by found the principle of creditor disagreement to maintain the legal rights of creditors. From our current civil procedure law article 204 can not be read out of the provisions of debtor’s objection and the implementation of the interpretation confirm the provision of non-debtor’s objection. To achieve substantive rights against the debtor relief,balanced protection of the interests of creditors and debtors, improve the implementation of the relif system, and also the need to build a harmonious society. China should establish the debtor’s objection to objection of v.. The feasibility of construction the debtor’s objection as follows:fristly, the rule of law raise the awareness of general public has been able to accept the legislation to establish the debtor’s objection to the Objection system. Secondly, other countries’ experience we can use for reference. Thirdly, nearly mature theory of the implementation of relief provides a theoretical basis to build the system. Finally, the result of the implementation of institutional reforms,as well as legislative of any objection and judicial experience can be available. To construction of the debtor’s objection to the sciencely, we should be clearly prescribe the scope of appeals field strictly limited the period of appeals, scientific standardized the reason of appeals, stipulating that appeals to the jurisdiction of the court, correctly found that appeals to the parties. In addition, such action should also address the request to indicate that the choice of the proceedings, the application of this referees as well as the implementation of programs.the impact of related issues.Lawsuit against the execution of participates in the assignment refers to in the process of participating in the allocation, creditors or debtors raises the objections to allocative decision in whether to have creditor’s rights of the creditors and entity questions such as creditor’s rights amount as well as assignment order, while other creditors or debtors proposes objection regarding the opposing opinion, creditors or debtors of raising opposing opinions sue to creditors or debtors who hold the opposing opinions.On the one had, Lawsuit against the execution of participates in the assignmen as well as Lawsuit against the execution by the third party has the common characteristics, belongs to Lawsuit against the civil executive objection. On the other hand, Lawsuit against the execution of participates in the assignment has it’s differences from Lawsuit against the execution by the third party as well as Lawsuit against the execution by debtor, it has own characteristics which cannot substituted by other type of Lawsuit against the civil executive objection, and has the independent existence value. Inspecing other countries and areas, Continental lagal system selects the centralized method to stipulate that lawsuit against the execution of participates in the assignmen, and rules of participateing in the assignment objection suing is closely related to stipulate and participates in the distribution system, stipulated that the relative system, comprehensive and the evening, the feasibility is strong, is worth our country using for reference. Existing rules in our country related with lawsuit against the execution of participates in the assignment exist some flaws, present situation of the fundamental research is not also satisfactory, and lawsuit against the execution of participates in the assignment waits for further consummates.Therefore,It is suggested that promoting potency level of the rule of lawsuit against the execution of participates in the assignment, through consummating system of participating in the distribution so as to purifying lawsuit against the execution of participates in the assignment,and patching related rules of lawsuit against the execution of participates in the assignment simultaneously.For instance, making the objection matter concrete, the prosecution period clarification, action in chief referee typological and so on.In addition, we need to solve related questions like recognizing of the litigant, expression of the lawsuit request, being suitable of the trying procedure as well as assignment of the proof responsibility and so on.