Research On Compulsory Enforcement Against Immovable Property

In the compulsory Enforcement against monetary claims,real estate is an important subject.Meanwhile,it is an essential part of the codification of civil enforcement legislation.Now the Civil Code of the People's Republic of China is to be implemented.The rural land system is undergoing reform and a unified real estate registration system is also being constructed.Under this specific underground,the issue of compulsory enforcement against immovable property depends not only on the feedback of judicial experience,but also on the abundance of theoretical research.Thus,this article focuses on the topic of "Research on Compulsory Enforcement against Immovable Property",and specifically divided into basic category definition,fundamental theories,rule system and judicial experience,analysis of China's real estate execution system problems and the recommendations of the improvement of China's real estate execution system.The basic category of compulsory enforcement against real estate is the starting point for all discussions.Compulsory enforcement against real estate is the subordinate concept of the execution of monetary claims.The object of the real estate included such as houses and land,land rights,the part held in co-ownership by owners,and specific movables such as vessel,aircraft,and “quasi-real rights”.The types of enforcement measures are seizing,enforced auction and receivership.However,now in our Civil Procedure Law has no receivership.Real estate can be created with many types of real rights,such as usufructuary exercising rights,security Interests and so on.The different types of real rights are related to different parties.There are frequent conflicts of rights between the executing creditor,the executing debtor,and a third party.Usually,it takes a third-party claim to prevent the disposal of an object subject to compulsory enforcement.This is also an important issue of the category.Meanwhile,the basic category is based on the three essential principles as follows:Formality principle,Responsible property and Principle of Proportionality.The formality principle is the criterion for the design of real estate execution procedures,including the formalization of the constituent elements and the formalization of the own judgment of real estate.In light of this,the opening of real estate execution should only be based on the requirements listed in the execution of the application;and the determination of the ownership of the subject matter of real estate execution should be based on the situation of real estate registration.However,if an objection to enforcement is filed due to a dispute over ownership,the general formal principles should be breached and substantive examination standards adopted.Responsible property theory is the core rule of real estate enforcement.The determination of responsible property should follow the "material" benchmark and time benchmark.In principle,ownership belongs to the debtor from the beginning of execution,and has the value of money and the independence of the "transaction concept".Things can be included in the category of liability property,but the exception can be extended to the property that the debtor will acquire and the property that has been disposed of.The Principle of Proportionality is a restriction on procedures and normative allocation to achieve a balance between the efficiency of real estate executives in the process,the realization of creditor's interests and the protection of human rights,specifically embodied in the protection of the debtor's “unique housing” and the prohibition of over-sealing and unprofitable auctions.The inevitable direction of research is to mirror theory and practice.At the macro level of legislative practice,on the basis of the enforcement norms of the Civil Procedure Law and the norms of substantive law,China's real estate enforcement has formed a normative system with judicial interpretations and documents of a judicial nature as the core,supplemented by local judicial documents and other normative documents.In addition,China's existing relevant Civil Enforcement Law(draft),is also a useful exploration of real estate enforcement norms.For a long time,China's real estate enforcement norms have played an important role in guiding judicial practice,but there are also ineffective,scattered forms,normative conflicts,inadequate detail and other shortcomings,there is an urgent need to sort out and integrate.At the macro level of judicial application,through the analysis of the current situation of real estate enforced auctions in China's existing judicial auction platform and the case data analysis of real estate execution objections,we can have a glimpse of the macro overview of China's current real estate enforcement practice,such as the excessively long real estate valuation cycle,the low turnover rate of land auctions,and the frequent occurrence of objections from buyers of real estate outside the case.There are also many problems inherent in the subsystems of China's real estate enforcement system.First,there are problems of fragmentation and contradiction in the validity norms of China's sequestration system;there is a lack of unified norms on the temporal validity of the sequestration of immovable property and the validity of publicity,and the debtor's disposition determined in article 26 of the Provisions of the Supreme People's Court for the People's Courts to Seal up,Distrain and Freeze Properties in Civil Enforcement is "relatively invalid ",as it conflicts with civil law and the norms of immovable property registration.In addition,there are inadequacies in China's unique system of presealing and waiting for sequestration,as well as deficiencies in the regulations,which need to be revised urgently.Secondly,there are problems with the appraisal mechanism and the defective regulation of the bid purchase deposit in China's price change procedures.Among them,the appraisal system is caught in the dilemma of the nature of the appraisal price being unclear,the validity of the overdue appraisal report being unsettled,and the powers and responsibilities of the appraisal agency being unclear;while the regulation of the bid purchase deposit lacks the regulation of the deposit paid by the applicant executor and the liability for the difference in the bid purchase deposit.In addition,due to the special nature of some real estate,such as rural collective land use rights,or illegal buildings and common real estate,it is difficult to realize the normal transfer of rights and delivery of the various difficulties due to the lack of clear basis for the variation.Thirdly,under the influence of factors such as the lagging development of China's real estate registration,the excessive interpretation space of the current implementation norms,and the complicated relationship of rights on the disputed real estate,the right objections of outsiders to the subject matter of the real estate in question,especially the examination of the objections of the purchaser of the real estate,the right holder of advance registration and the lessee of the real estate,are caught in the dilemma of divergent decisions and incomplete theoretical argumentation.Thus,oriented to the above problems,to provide theoretical supply for the future codification of civil enforcement legislation,the following aspects need to be optimized:first of all,improve the validity system of real estate seizure,refer to the norms of registration of real estate,to determine the registration of seizure as the standard for the validity and publicity of the seizure of real estate,and amend the "relative invalidity" effect.The rules should be coordinated with real estate registration to achieve a rule that the debtor's disposition takes effect without prejudice to the interests of creditors.Secondly,for the real estate valuation system,it draws reference from the evaluation system of real estate in German legislation,determines the valuation standard,the responsibility of the evaluation agency refers to the liability of the appraiser for damages caused by gross negligence,and establishes mechanisms such as the disclosure of the evaluation report;on the bidding deposit rule,it reshapes the nature of the bidding deposit,absorbs the results of the local court norms and judgment experience,and adopts the "standard" for the bidding deposit.The rule of "no refund for more,no refund for less".With regard to the valuation of special immovable property,reference is made to extraterritorial legislation and the rules of division of common immovable property under substantive law,and the rules for the valuation of common immovable property are determined;the plan of "division first,valuation later" is adopted,and valuation is carried out after the common relationship is dissolved.For the real estate that is difficult to realize in practice,such as rural land use rights and illegal buildings,compulsory management measures are introduced to repay the debt through the proceeds.Furthermore,taking the interpretation and amendment of Articles 28 to 31 of the Provisions of the Supreme People's Court on Several Issues concerning the Handling of Enforcement Opposition and Reconsideration Cases by People's Courts as an opportunity,the rights and interests sufficient to exclude the execution of real estate are enumerated as ownership rights,usufruct rights,expectancy rights,lease rights and special claims;the outsiders are again categorized as general real estate purchasers,consumer purchasers,anonymous real estate purchasers,advance registration rights,real estate lessees and so on.Regulate separately.As an important part of the "Money Claims Enforcement Part" of the future Civil Compulsory Enforcement Law,real estate enforcement is based on a complete content and reasonable system.Based on the analysis of the aforementioned problems and the perfection path,and after reviewing the case design and content arrangement of the existing draft legislation,the real estate execution proposal is formed in this paper,and this will be the starting point of the research so that the research of real estate execution system always focuses on local problems and responds to local needs.