Study On The System Of The Third Party's Objection Suit In Civil Enforcement

In civil enforcement, due to exist the inconsistency between the appearance and the physical of vesting of the property, it is inevitable that enforcement agency improperly enforces the property of the Third Party. As for this, in order to protect legitimate property rights of the Third Party, common practice in many civil law countries and areas, such as Germany, Japan and Taiwan of China, is to give the Third Party right to appeal, to allow the Third Party to challenge for substantive legal issues that whether the executed property is the liable property. Provision 204 Civil Procedural Law in 2007 provides for the relief that the Third Party can use the right of challenge for the first time.The reason why all national and regional legislations provide the Third Party the right of challenge for relief is that the disputes between the Third Party and the creditors meet the requirement of suit elements, which constitutes a separate civil action.The national academia has severe debates for the nature of the Third Party's Objection Suit, which will be analyzed in this paper. After the introduction and review of the various theories, the nature of the Third Party's Objection Suit is proposed as the relief suit. Because only the relief suit theories can take into account at the same time the function and value issue, res judicata issue and excluded way of the enforcement agency improper enforcement issue.The establishment of the Third Party's Objection Suit is a great progress of civil legislation, which not only effectively protects the Third Party's substantive rights, but also promotes the enforcement of China's relief system. However, the current system of the Third Party's Objection Suit in China has many problems, due to the lack of theoretical preparation and the influence of the thought of emphasizing entity while neglecting procedure and the thought of emphasizing efficiency while neglecting fairness in the legislation. First, the elements of the Third Party's Objection Suit are defective, including unclear scope, harsh time limit and abstract subject; Second, the procedure of the Third Party's Objection Suit is defective, including incorrect pre-program set and the absence of the implementation tribunal; Third, the Third Party's Objection Suit system and other systems are not coordinate, including the competing with the objection system and the mixing with the retrial system.In view of this, this paper examines Germany, Japan and Taiwan of China and other civil law countries for the relevant legislation, theory and legal practice experience of the Third Party's Objection Suit, and summaries the Third Party of its objection to perfect appeal system in China, finally, proposes the specific ideas of improving the Third Party's Objection Suit. First is to improve the elements issues of the system of the Third Party's Objection Suit, including specific scope of application, relax time of bringing ,the subject of detailed objections; Second is to improve the procedural matters of the Third Party's Objection Suit, including amendments to unreasonable pre-procedure and specific the implementation tribunals; Third is to handle relations with other systems, including the competing issues with the implementation objection system and the mixing problems with the retrial system.