Civil Lawsuits Of Objection To Execution In China

Civil lawsuit of objection to execution is one of the most important ways of remedies of civil execution. It is a remedy to the parties of execution and third party by lawsuit. The Civil Procedural Law of China which entered into force in1991does not have any stipulations on lawsuits of objection to execution; it only acknowledged the existence of the regime. Later, the amended Civil Procedural Law and the Explanation on Execution provided some rules concerning lawsuits of objection by person not involved in the case, lawsuits of applicant of execution applying for permission of executing the object and competent court and parties of lawsuits of objection concerning participation in distribution. Clearly, these provisions are a huge step forward in the execution regime. However, there are still many problems in the regime since the lawsuits of objection to execution in China only existed for a fairly short period, such as lack of provisions on some issues, etc. This paper starts by analyzing the current situations of the lawsuits of objection to execution regime. Then the author will point out some defects and shortcomings existing in our current regime. By reviewing the experience of other nations, the author will raise some suggestions on how to improve the lawsuits of objection to execution in China.The methods used in this paper are method of literature review, method of comparative analysis, and method of comprehensive analysis. Based on the literatures the author found and studied, the author, combining the realities of China, points out the legal issues existing in four levels of lawsuits of objection to execution regime. In the hope of doing something for the development of lawsuits of objection to execution in China, the author raises some suggestions on all the issues. There are three parts of this paper: introduction, main body and the conclusion.The main body of this paper includes four chapters:In chapter one, the author introduces the fundamental theories on civil lawsuits of objection to execution in China. First, the author defines the term "lawsuits of objection to execution"; then analyses the characteristics and structure of lawsuits of objection to execution and clarifies that the lawsuits of objection to execution include lawsuits of objection by person not involved in the case, lawsuits of objection by debtor, lawsuits of permission of execution and lawsuits of objection concerning participation in distribution. Second, the author analyzes the nature of lawsuits of objection to execution and prefers to accept the theory of action of performance. At the same time, the author also clarifies the theoretical basis of lawsuits of objection to execution:principles of separation of powers and checks and balances, principle of "where there are rights, there are remedies" and principle of autonomy of will of the parties. At last, the author points out the necessity and practicability of existence of lawsuits of objection to execution.Chapter two provides related legislations of other nations on lawsuits of objection to execution. It starts by introducing the rules in Anglo-American law system, then focuses mainly on the legislations of Continental law system, such as France, Germany, Japan and Taiwan of China. The author considers them valuable in the process of improvement of the lawsuits of objection to execution regime in China.In Chapter Three, the author analyses the current situation of the lawsuits of objection to execution regime in China. By studying the laws and explanations in force, the author finds that lawsuits of objection by person not involved in the case, lawsuits of permission of execution and lawsuits of objection concerning participation in distribution are still in the process of start-up, and there are still many unresolved issues, not to mention that there is no lawsuits of objection by debtor in China.In Chapter four, the author raises suggestions on improving lawsuits of objection to execution regime. First of all, the author specifies the causes of action, accepting institution, time of lawsuits of objection by person not involved in the case. Then, the author states some suggestions concerning setting up lawsuits of objection by debtor regime. Finally, the author raises suggestions on improving lawsuits of permission of execution and lawsuits of objection concerning participation in distribution.