Research On The Lawsuit Against The Execution Brought By The Third Party

The amendment of the Civil Procedural Law of the People's Republic of China has always been a focus of discussion among the scholars. In order to protect the legal interests of the debtor and the third party other than involved in the case (hereinafter referred to as the third party) from the harm caused by the illegal or improper acts of execution, to realize balanced protection for the parties of the execution and the third party, it is necessary to establish a relevant system of executive relief to provide prompt and effective legal remedies for the oblegee and the third party when their rights are damaged. At the moment when the voice of the separate legislation of the Civil Compulsory Execution is becoming stronger, the research on the issues about the lawsuit against the execution brought by the third party is of special theoretical and realistic significance. In this thesis, the author will start from the analysis of the implication, characteristics and nature of the lawsuit against the execution brought by the third party and briefly introduces the present state of legislation and judicial experience of the lawsuit against the execution brought by the third party in some typical countries and regions of the continent law system. The author will comprehensively analysis some of the drawbacks of the legislation and judicature of the system of executive relief of China at present and will thoroughly discuss the construction of the system of lawsuit against the execution brought by the third party with the purpose to promote the legislation of the civil execution law of China and the establishment of a China-characterized system of executive relief.This thesis is composed of an instruction and a text. The text is composed of five parts:The first part gives a brief account of the lawsuit against the execution brought by the third party. The implications of the concept of the lawsuit against the execution brought by the third party and some relevant concepts, such as executive relief, substantive relief measures and procedural relief measures are introduced. The characteristics of the lawsuit against the execution brought by the third party are analyzed and the system of lawsuit against the execution brought by the third party is grasped overall. Part two is the analysis about the nature of the lawsuit against the execution brought by the third party. Some different viewpoints about the nature of the lawsuit against the execution brought by the third party in the field of law both in China and abroad are introduced, such as the theory of action of formation, the theory of action of confirmation and the theory of action of performance. The author compares and analyzes theseviewpoints and sets forth her own viewpoint--the lawsuit against the execution broughtby the third party is of the nature of the action of relief.Part three mainly talks about the present state of legislation and judicial practice of the system of lawsuit against the execution brought by the third party in some typical countries and regions of the continent law system, analyzes their legislative train of thought as well as their respective benefits and drawbacks and points out the advantageous aspects that we can make use of in the process of the legislation of our system of lawsuit against the execution brought by the third party.Part four gives a detailed and comprehensive analysis about the drawbacks of the system of objection against the execution brought by the third party in our present civil procedural law and proves the necessity and feasibility of the reform of the system of objection against the execution brought by the third party in the present civil execution procedure from many aspects such as its nature, its examine procedures and its relief mechanism, etc.In part five, the author sets forth a train of thought of the specific construction of the system of lawsuit against the execution brought by the third party on the basis of the prior ample theoretical demonstrations. From the aspects such as the procedural status of the person bringing the lawsuit and other persons involved, the proceedings of the lawsuit against the execution, the measures of supervision of the judgments and the binding power of the judgments, the author sets forth some practical suggestions to the construction of the system of lawsuit against the civil execution brought by the third party in the process of the legislation of civil execution of China.