Study On The Nature And Object Of Action Of The Opposition-to-execution Lawsuit Brought By The Third Party

As the remedy for execution, the opposition-to-execution lawsuit is very important forthe third party or the debtor whose right may be infringed as civil enforcement. Traditionally,the nature of the opposition-to execution lawsuit is the starting point and basis points as theconstruction of the system-the opposition-to-execution lawsuit, and we shall firstly define thenature of lawsuit against the execution if we continue to study on the opposition-to-execution.But for the long time,it’s serious debate about the opposition-to-execution lawsuit’s nature,for what is its essence, there are vary theories, i.e. the theory of formational action,thetheory of neo-formational action, the theory of confirmatory action, the theory of action ofprestation, or the theory of mandatory action and the theory of relief action which aren’tbelong to the traditional lawsuit type. As the confusing recognition on the nature of theopposition-to-execution in theory, it causes a serious bad consequence which not only leads todifficulty on the judicial operation, but also impacts the achievement of the system’s relieffunction. To solve the theory problem, this paper takes the-thirdly-party’s-opposition-lawsuitas an example, trying to analyse and realize the essence of the opposition-to-execution lawsuitin some extent. And by the analysis on the nature, we can understand the cause of dispute anddefine object of act of the opposition-to-execution lawsuit.This paper is divided into five parts:The first part: put forward the problem. The traditional view recognizes the nature of theopposition-to-execution lawsuit as construction basis of the opposition-to-execution lawsuit,saying the nature impacts and decides the object of action of the opposition-to-executionlawsuit, the party’s fitness. So from then on to analysis and discussion of the lawsuit of theopposition-to-execution problem is the direction of the theory research. But before thediscussion of the related theory, should do firstly for the grasp of the premise. Firstly, thereasons and meaning of independent existence of the opposition-to-execution lawsuit, fromthe following: the legitimacy of the execution, the adjudged force, the interests of rights andthe effectiveness of the rights limited. Secondly, clearly claims that this paper should discussthe nature of the opposition-to-execution lawsuit according to the different types of theopposition-to-execution lawsuit. Thirdly, the operation of the opposition-to-execution lawsuitin the judicial practice, and the difference among action of confirmation,action of formationand the opposition-to-execution lawsuit. The second part: the nature of the opposition-to-execution lawsuit brought by the thirdlyparty. Firstly, introduce vary types of theories on the nature of the opposition-to-executionlawsuit brought by the third party in current academic circle, including the theory offormational action,the theory of neo-formational action, the theory of confirmatory action,the theory of action of prestation, the theory of mandatory action and the theory of reliefaction. By sorting and analyzing above types of theories, this paper points out the advantagesand disadvantages of each theory. Secondly, on the basis of sorting and analyzing above typesof the theories, we can get further understanding on the opposition-to-execution lawsuitbrought by the thirdly party and its nature.The third part: analyzing why there are so many types of theories on the nature of theopposition-to-execution lawsuit brought by the third party. The main purpose is to find out thereal reasons that cause confusion about the nature of the opposition-to-execution lawsuitbrought by the third party, mainly from the following four aspects: Firstly, fundamentaltheory on right to claim coercive execution. By analyzing the specific right to claim coerciveexecution and the abstracted right to claim coercive execution, this paper points outfundamental theory on right to claim coercive execution isn’t a reason that causes theconfusion on the nature of the opposition-to-execution lawsuit brought by the third party;Secondly, the influence of the litigant phrase. It points out that previous theories ignorelitigant phase factors, resulting in the confusion on the nature of the opposition-to-executionbrought by the thirdly party. Thirdly, the enlightenment of the theory of new type’s action.The contradiction between double purpose and single object of action, which is discovered bythe theory of new type’s action, makes us contemplate. By studying on theory on object ofaction and theory on retrial action, it completes the discussion on the definition of object ofaction of the opposition-to-execution lawsuit brought by the third party. we also make aconclusion that object of action of the opposition-to-execution lawsuit brought by the thirdparty is single, not double, and the object of action of the opposition-to-execution lawsuitbrought by the third party isn’t a reason that causes the confusion on the nature of theopposition-to-execution lawsuit brought by the third party, there is no necessary link betweenthem. Fourthly, separate procedure design from theoretical construction. It points out thatpaying more attention to theoretical construction and paying less attention to procedure designare also deepening the complexity on the recognition on the nature of the opposition-to-execution lawsuit brought by the third party, leading directly to the confusionon the nature’s problem.The fourth part: to study the nature of the opposition-to-execution lawsuit brought by thethird party and the theory of action of prestation again. By analyzing and considering thetheory of action of prestation again, it points out that it is reasonable to take the theory ofaction of prestation as definition of the nature of the opposition-to-execution lawsuit broughtby the third party. Under the guidance of the view that we should separate theoreticalconstruction from procedure design, the theory of action of prestation can overcome itsinternal shortcomings.The fifth part: object of action of the opposition-to-execution lawsuit brought by thethird party. Firstly, combining the nature of the opposition-to-execution lawsuit brought bythe third party, to define the object of action of the opposition-to-execution lawsuit brought bythe third party. Secondly, combining these theoretical construction and other countries’procedure design on retrial litigation, to complete procedure design of theopposition-to-execution lawsuit brought by the third party. Thirdly, to analysis and evaluatearticle204.The article is advancing in some areas, but avoids the substantive problems.