On The Objection System To China's Civil Compulsory Enforcement

Civil compulsory enforcement system is one of the important parts of the judicial system, and is one of the methods for a state's civil compulsory enforcement authority to exercise its power. The aim of the civil compulsory enforcement is to force the debtor to fulfill his obligations, to protect the creditor's legal rights, to guarantee the credit and the security of the transaction, and to maintain the normal social economical order. It is the last procedure for the private right remedies. The nature of the civil compulsory enforcement determines that the enforcement measures must be quick and prompt, so we can only make judgments based on the appearance of the ownership for the rights in the course of the enforcement. But the social activities are complicated, so the procedure of the civil compulsory enforcement has the feature that is liable to infringe the rights of the parties and the others out of the lawsuit. At the same time, with the enlargement of the adjudged force and the executive force, the civil compulsory enforcement procedure may lead to improper or illegal enforcement, which will infringes the legal rights and the interests of the parties and the others out of the lawsuit. In order to achieve the implementation efficiency of the civil compulsory enforcement system infringe the legal rights of the parties and the others out of the lawsuit without sacrificing the justness, the objection system to the civil compulsory enforcement comes into being.The objection to the civil compulsory enforcement is such kind of law system and method that the parties or the third parties request the related authorities to protect or remedy according to the law, when their legal rights and interests are infringed or possible to be infringed by the compulsory enforcement activities of the enforcement authorities. It has the characteristics such as protection, remedy, passivity, afterwards and legality. In the enforcement procedure, the objection to the civil compulsory enforcement belongs to the hypogyny procedure. In the litigation procedure, the objection to the civil compulsory enforcement belongs to the special procedure. In the process of the civil compulsory enforcement, the improper or illegal enforcement activities have two kinds of negative effects, one is it infringes the legal rights and interests of the parties and the others out of the lawsuit, the other is it makes damages to the judicial authority go the enforcement authorities, then affects the just and efficiency of the enforcement. So the objection system of the civil compulsory enforcement has the function of remedy and restriction.According to the nature of the objection to the civil compulsory enforcement, enforcement objections can be divided into procedural objection and substantial objection. Procedural remedy is such kind of remedy that the parties or the interested parties request the enforcement authorities to cancel or correct the enforcement, when they consider the behavior of the enforcement authorities'behavior as violating the law. Procedural remedy mainly includes request for action or non-action, declaration for objection, counter appeal for enforcement, and objection to participation in distribution. Substantial remedy that is the lawsuit for objection, is such kind of remedy that the debtor or the third party requests the judgment to the substantial legal relation, so as to remove the civil compulsory enforcement, when they consider that the creditor's request is different from the real right, or there are enough substantial causes to prevent the creditor from appealing for enforcement. Based on the difference subjects who raise the lawsuit, the lawsuit for objection can be divided into the debtor's lawsuit for objection, the third parties'lawsuit for objection and the lawsuit for objection to participation in distribution.Before the modification of China's Civil Procedure Law, China's objection system to the civil compulsory enforcement has not been divided into procedural objection and substantial objection, the cause for the objection to enforcement is narrow, the subject is single, the review system of the objection to enforcement is not perfect. It is lack of remedy methods to the review result. So it can not provide enough right guarantees and remedies, and can not fully play its role.In order to standardize the enforcement action, to promote the judicial justness, and to protect the legal rights and interests of the parties well, Decision on the Modification of China's Civil Procedure Law was adopted at the 13th Session of the Standing Committee of the 10th National People's Congress on October 28, 2007. The contents of this modification is based on the experiences resulted from the reform on the enforcement system and the working mechanism of the People's Courts in the recent years, and the research achievements from the civil procedure law field. This modification also coordinate in the public law and the private law the interest relations of the different subjects involved in the civil enforcement procedure, and provides the procedural guarantee for the parties involved in the enforcement while pursuing the efficiency. Based on this modification, the Supreme People's Court of the People's Republic of China enacted the Explanation of the Supreme People's Court of the People's Republic of China on the Issues of the Applicability of the Enforcement Procedures according to China's Civil Procedure Law (hereinafter short for Enforcement Procedure Explanation), the 5th to 10th, the 15th to 26th clauses of which perfect the objection system to the civil compulsory enforcement.Although the modified Civil Procedure Law added the objection to enforcement procedure, and established the lawsuit for objection to enforcement, and Enforcement Procedure Explanation also made some legislation perfections to Civil Procedure Law, so as to guarantee the rights for civil compulsory enforcement remedy of the parties, the interested parties and the others out of the lawsuit, there are still some defects about China's objection system to the civil compulsory enforcement like ambiguous provisions and inconvenient to operate in the aspects of registration and review. Based on the legislation regulations and theoretical researches on China's objection system to the civil compulsory enforcement, together with his own judicial practice experiences, the author suggests that in order to perfect the registration procedure of the objection system to the civil compulsory enforcement, we should make the register court hear the suits, permit to request the objection to enforcement in oral, limit the range of"enforcement activities against the law", and make clear the objecting date and the litigation fee; in order to perfect the review procedure of the objection system to the civil compulsory enforcement, we should make clear the review organization forms, review methods and the burden of proof, perfect the treatment methods of the objection to the enforcement procedure, and make clear the ownership of the review right. At the same, in the process of the review of the enforcement objection lawsuits, we will meet the concurrence between the enforcement procedural objection and substantial objection, or between enforcement objection and the other enforcement remedy procedures, and we must treat theses concurrences well, so as to guarantee the legal rights and interests of the parties, the interested parties and the others out of the lawsuit promptly and effectively. As the directly affected parties, the debtors'substantial rights are most liable to be infringed by the enforcement activities. It is good to establish the debtor's lawsuit system for objection for the debtor to request remedy promptly, so as to protect the legal rights and interests of the creditor and the debtor. The aim of the debtor's lawsuit for objection is to prevent some or all the executive force of the enforcement basis, that is to judge the current enforcement basis as not fit for enforcement or not able to be executed, but not to cancel or change it by denying the nominal legal effects. The debtor's lawsuit for objection is actually the substantial disputes between the parties on the executive force of the enforcement basis. But the modification of China's Civil Procedure Law does not introduce the debtor's lawsuit for objection. So it is better to establish debtor's lawsuit for objection quickly, in order to guarantee the debtor's legal rights and interests well.