Research On The Effect Of Advance Registration In Compulsory Execution Procedure

In the enforcement procedure,whether the real estate after the notice registration has the limitation or the effectiveness of the enforcement of the court against the court,whether it is in the theoretical or practical circles,there is a dispute.Therefore,in the trial practice,the judgment standard of the courts at all levels is rather chaotic,which also leads to the different handling of the issue by the courts at all levels.Many scholars in our country have studied the advance notice registration from the perspective of substantive law,but they lack the procedural law response to the study of the effectiveness of the notice registration in the enforcement procedure.In this paper,the use of practice,case research,statistical analysis,comparative research and theoretical contact with the actual method to prove that the real estate after the registration of the notice can be restricted in the enforcement process or against the effectiveness of the compulsory execution of the court,in order to clarify the legislative purpose of notice registration,to define the nature of the right after the notice registration,to clarify the real estate after the notice registration in the enforcement process the effectiveness of different situations and the ways to remedy the rights of the parties and the third party in the enforcement procedure are beneficial to the unification of the judicial judgment of this kind of disputes.This article is divided into five parts,with a total of more than 33,000 words :The first part : the nature of the notice registration in civil law.At present,there are many theories about the legal nature of advance notice registration,such as the system of preservation of claim,the theory of quasi-property rights,the theory of real right of creditors rights and so on.Through the introduction and comparative analysis of the viewpoints,the paper discusses the connotation of the system,the purpose of legislation,the characteristics and differences of the property rights and the creditors rights the legal nature of advance notice registration is a type of real right of creditors right.The second part : the current situation of the notice registration in the enforcement procedure of our country.First of all,in terms of legislation,we can find out the problem by sorting out the regulations about the effectiveness of the real estate in the compulsory execution procedure in the current law of our country,the current law of our country has not clearly defined the system,and even there are contradictions between some provisions.Second,in the judicial practice,through the Supreme Peoples Court and the Higher Peoples Court of the notice registration of real estate in the enforcement procedure whether it has the effectiveness of confrontation with the court enforcement in order to solve this problem,the judgment standard of the Supreme Peoples Court and the Higher Peoples Courts is also confused.The third part : the effectiveness of the notice registration in the enforcement procedure in the perspective of comparative law.As a claim of claim,the notice registration is endowed with the absolute effect against the third party.Whether the absolute effectiveness of the third party against the compulsory execution of the court will have the effect of exclusion,and Germany and Taiwan region of China have carried out legislative provisions on this problem.According to German law,the right to request for transfer of immovable property after advance notice registration is regarded as the ownership of the real property that has been registered by the transfer of ownership in the compulsory execution procedure,and the right holder of the notice registration has it the ability to counteract the courts enforcement.However,the taiwan region of our country believes that the registration of advance notice will have no effect on the new registration for the imposition of the expropriation,the court judgment,or the compulsory execution.The fourth part : the analysis of the typology of the effectiveness of the notice registration in the compulsory execution procedure of our country.On the one hand,in the execution of money creditors rights,the real estate which is registered in advance can not resist the courts pre-sealing or sealing measures because of the temporary control measures,at the same time,because the compulsory auction measures will lead to the original acquisition of ownership of the auction,the court can not carry out compulsory auction of the real estate registered in the notice.On the other hand,in the execution of non-pecuniary claims,when the notice registration already exists before the enforcement basis,the notice registration occurs prior to the effective judgment,out of respect for the finality of the judgment the power of seeking power does not have the effect of adversarial enforcement of the court;when the notice registration takes place after the enforcement basis,for the realization of the overall legislative purpose of the advance notice registration,the right of the notice registration request after the court judgment has the effect of resisting the enforcement of the court power.The fifth part : the procedure relief of the parties and the third party of the noticeregistration in the compulsory execution procedure.Due to the diversification of the types of practice in the enforcement procedure,the notice registration of the parties and the third party for the notice registration because of improper execution or execution error,we should take a variety of relief methods,that is,procedural relief and substantive relief,that is,the parties to the notice registration and the third party can carry out the action objection and the action of dissent,retrial and other relief ways to safeguard their legitimate rights and interests.