Dilemma And Solution Of Lawsuit Of Objection To Civil Execution

The problems of difficulty in civil execution exist for a long time, the links ofexecution procedures are complex, and execution is the last phase of judicialprocedures and is the important approach in which the parties directly feels judicialjustice, affecting the fulfillment of rights of parties finally. Therefore, when the lawfulrights and interests of the parties are infringed in the execution process, thecorresponding relief approach is needed, and thereby producing the lawsuit ofobjection to execution. The lawsuit of objection to execution is an effective means forrelieving the lawful rights and interests of parties and persons other than involved inthe case when being infringed, and it belongs to the substantive relief to the parties asindependent lawsuit, which is substantive examination in nature.With the development of economic society and the awakening of theconsciousness of people’s right, regardless of Anglo-American law countries or civillaw countries, the study of civil law in each country on the lawsuit of objection toexecution is deepened increasingly, forming its own institutional system, opening upthe study on the categorization of the lawsuit of objection to execution so as to playthe important role in the adjustment of social relations. The regulation of CivilProcedure law of the People’s Republic of China being implemented in China on thelawsuit of objection to civil execution only has a legal provision, namely article227.Article17and article21of Explanation of Supreme People’s Court on Several Issuesof Application of Execution Procedure of Civil Procedure law of the People’sRepublic of China are used for detailing the provision. Provision on Cause of Actionfor Civil Cases of Supreme People’s Court (No.F【a2011】42) stipulates that the causesof action of lawsuit cases of objection to execution are determined as “the lawsuit ofobjection to execution of person other than involved in the cases” and “the lawsuit ofobjection to execution of execution applicants”. The above is basically all basis ofguiding the juridical practice of the lawsuit cases of objection to execution in the past.The latest Explanation of Supreme People’s Court on Application of ExecutionProcedure of Civil Procedure law of the People’s Republic of China will be implemented on4th February,2015, stipulating the lawsuit of objection to executionin detail via13articles, wherein the executive court has jurisdiction over the cases ofthe lawsuit of objection to execution, the cases are heard in case applicable ordinaryprocedures, contents of addressing request of asking for ownership confirmation bypersons other than involved in the case, etc. are explicitly stipulated, however, thestatus of persons subjected to execution, substantive right range, prepositiveprocedures and the concurrence issues with other judicial proceedings in lawsuit ofobjection with large dispute in the juridical practice are stipulated in a vague way orare not referred at all, resulting in wide the rules and regulations of the lawsuit ofobjection to execution, inconformity in the understanding of judges on the rules andregulations in the juridical practice process, so that the result of judgment is difficultto reach consensus. Due to difference between the practical situation of China and thesituation referenced from countries or districts, the dispute of the lawsuit of objectionto civil execution in the theoretical and practice circles after trial is large, and therebyproducing dilemma to juridical practice.In order to solve this dilemma, the writer rethinks some issues of the lawsuit ofobjection to execution in the theory and the current situation of dilemma of thelawsuit of objection to execution to juridical practice by analyzing the typicaljuridical practice cases and analyzes the reason behind the dilemma. The writersuggests the cancel of prepositive procedures of the lawsuit of objection to executionby applying the methods of comparative study and historical study and referring tothe legislation of the lawsuit of objection to execution in civil law andAnglo-American law countries or districts in the case of adapting to the needs on theeconomy and social development of China, the judicial appeals of the masses andjudicial practice needs, determines the legal status of persons subjected to executionin the lawsuit of objection and the substantive right of instituting the lawsuit ofobjection and gives the option to parties during the concurrence of the lawsuit ofobjection and the lawsuit of revocation of the third party with the same protectivelegal interests in accordance with the types of the lawsuit of objection needed to beadded, aiming to play the promoting role on the theoretical study and juridicalpractice of the lawsuit of objection to execution. This article is divided into three parts. In the first part, the procedural andsubstantive dilemmas of the lawsuit of objection to civil execution in the juridicalpractice process are introduced in the form of cases; in the second part, the reason ofproducing the dilemmas is investigated by surveying the status of implementation ofChina, theoretical study and legal provisions, indicating the necessity of enhancingthe legislation of the lawsuit of the current lawsuit of objection to civil execution ofChina is reflected, and the perfect legislation suggestion is proposed by studying theexisting the system of the lawsuit of objection to execution and contrasting thelawsuit of objection to execution in Anglo-American law and civil law countries anddistricts to fulfill the aims of effectively guiding judicial practice, positivelyneutralizing the disputes of parties, improving lawsuit efficiency and realizingfairness and justice.