The Lawsuit Of The Execution Objection:Problems And Countermeasures In Legal Practice

The civil procedure law (2007 amendment) introduced the system of lawsuit of the execution objection, and changed the way of focusing on execution efficiency but gave no attention to the legal rights and interests of the third party. The new system guarantees the third party the right to sue, it also reflects the legislation change:from protecting the interests of the creditor to respecting the legal rights of the third party. But till today, the law and the judicial interpretation haven’t established a unified standard on the specific operation in legal practice. The lack of legislation resulted in confusion and chaos in real practice, and the law haven’t achieve the goal of ending dispute in terms of the objection of action, the referee range, and the standard of review. The author select real cases to discuss about the hotspot issue in legal practice and the controversy desperately needed unifying, hoping to offer a few commonplace remarks by way of introduction so that others may come up.Chapter one of the paper mainly discuss the identification of the objection of action in the execution objection; secondly, it compares opinions from the perspective of real case, judicial adjudication and theory. Lastly, on the basis of the analysis of the purpose of the execution objection, judicial adjudication and res judicata, the author reaches the conclusion of how to identify the objection of action in the execution objection.Chapter two of the paper discusses the judgment on contracts in an execution objection. It focuses on two questions, one is whether the court should hear contractual issues and reach a decision in the execution objection. The other is how to identify the effect of several common stereotyped contracts.Chapter three of the paper centered on the identification of the third party. Firstly, the paper explicated the approach to identify the third party. Secondly, it discussed whether a third party had the entity ownership or not. At last, the paper unscrambled the idea of civil rights and interests enough to terminate the execution, and discussed several rights and interests frequently used by the third party to see whether they are enough to terminate the execution.