Research On The Effect Of Real Estate Seizure Entity

The seizure of real estate is a civil mandatory executive measure applicant to apply for a temporary limit of the court or deprive the executor of the real estate ownership in order to guarantee the realization of his claim,which prevents the real estate from being damaged by putting it under the control of the execution court.It is an ensurance to the successful implement of the creditor's claims.Since China has not yet issued a unified mandatory executive law,relevant provisions of the real estate seizure are mostly distributed in the Civil Procedure Law and its relevant explanations,which are incomplete and scattered.The systematic provisions of the real estate seizure in China's existing laws concentrate upon Provisions of the Supreme People's Court on the Seizure,Distrain,and Freezing of Property in the Civil Execution of the People's Court,enfored from January 1,2005,(hereinafter referred to as Regulations for Seizure),and Supreme People's Court's Provisions on Several Issues Concerning the Implementation of the People's Court(Trial),enforced from July 8,1998,(hereinafter referred to as Execution Regulations),which were formulated on the basis of the practical experience of civil execution from courts at all levels by the Supreme People's court.However,the earlier promulgation of these two laws cause the problem of its inadaptation with changes in judicial practice.It is not uncommon for disputes over rights and interests caused by seizure of real estate.This article mainly studies the substantive effectiveness of real estate seizure.Although some provisions in Regulationns for Seizure,Execution Regulations and Civil Procedure Law involve the procedural aspects of real estate seizure,most of them are safeguarding the state power from the perspective of the judiciary and weak in prrotecting citizens' private rights.This article investigates the substantive issues based on the subject of private rights protection in real estate seizure,and then makes suggestions from the author.Firstly,as for the conflict between pre-registration and seizure,measures taken mostly are “attch-unseal”,but the author holds the opinion that it is defective and then proposes to establish a priority system in order to solve this problem.Secondly,as for the effectiveness of foreigh transfer of real estate during the period of attachment,absolutely effective or relatively effective,which is controversial.The author affirms that the contract of real estate foreigh transfer should be effective during the period of attachment,which is more conductive to balance the rights and interest of the paties and maintain the stability of transaction.Thirdly,as for the realization of the sealed real estate mortagage rights,due to the restrictions from attachment to disposition,the discount settlement agreement signed between the mortgagee and the mortagagor is invalid.The author proposes that the realization of the mortagege right on the real estate seizure should be paid by its realization.Finally,as for the effect of seizure on the power of disposition of administrative agencies,the author proposes that the people's courts and administrative agencies should be allowed to seize the same subject matter,which is more conducive to the realization of seizure purpose.