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Research On Proper Plaintiff In The Action Of Third Party Objection

Posted on:2012-01-04Degree:MasterType:Thesis
Country:ChinaCandidate:R XiaoFull Text:PDF
GTID:2246330374996206Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
The newly revised code of civil procedure has set up the action of third party objection to the civil execution. Because the legislation is not perfect, it is difficult to resolve many problems existing in the judicial practice, so the scope of the plaintiff must be clarified first.The action of third party objection is based on the right to exclude the subject of a civil execution. As a methord of relief existing in the civil execution procedure, the action of third party objection has a characteristic different from the general civil procedure. Action of the third party objection possess the quality of an independent procedure;and in value orientation, it focus on justice, but compared with the commom civil procedure, action of the third party objection has more emphasis on the efficiency and economic costs.As a result of its characteristic and its nature China’s legislation about the proper plaintiff in the action of third party objection is a restriction compared with the common civil procedure.The procedural elements of proper plaintiff in the action of third party objection are as follows:First, the plaintiff is not only an ordinary citizen or corporation and other organizations with action ability, but should be the third party. Second, the plaintiff shall be subject to a pre-process objection before the objection filed. Third, the limitation of action should between in the beginning of civil execution and the end of civil execution. Fourth, only the court of execution has jurisdiction over the action. Fifth,the defendant must be the one who apply for civil enforcement. The substantive elements of proper plaintiff in the action of third party objection are:the plaintiff should claim ownership of the subject matter or possess other substantive rights to prevent the implementation of the transfer, delivery of the subject matter.Proper plaintiff in the action of third party objection should be consistent with these two elements which mentioned above. But due to the expansion of civil executive power,who is changed from the third party in civil procedure to a party in executive procedure,shoud not be excluded from the proper plaintiff in the action of third party objection. In this case, the scope of the plaintiff must be expanded.
Keywords/Search Tags:Relief of civil execution, Action of third party objection, Proper plaintiff
PDF Full Text Request
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