The Study On Objection Lawsuit Filed By Outsiders To Execution In Civil Litigation

The lawsuit system for the objection lawsuit to execution comes from the countries of the civil law system represented by Germany and Japan.With the continuous progress of China's legislation,the Civil Procedure Law of the People's Republic of China(hereinafter referred to as the "Civil Procedure Law")and related judicial interpretations have gradually established the types of the objection lawsuit filed by outsiders to execution,the objection lawsuit filed by application executor to execution,the lawsuits against the execution of distribution plans,etc.The object of this article is the objection lawsuit filed by outsiders to execution in judicial practice system.With the continuous deepening of theoretical research and the continuous development of judicial practice in China,the system is facing many new dilemmas both in theory and in practice.At the theoretical level,first of all,the nature of the objection lawsuit filed by outsiders to execution is that there are many divisions of the doctrine of the order,the relief of the remedy,the formed arbitration,the newly formed arbitration and so on,and its nature needs to be clarified urgently;Secondly,the objection lawsuit filed by outsiders to execution and the retrial and the revocation of the third party are both relief procedures,and the development of practice leads to the relationship between them also need to be further clarified;Finally,scholars have different considerations as to whether the focus of the trial on the execution of an objection by an outsider should be the enforcement of the rights dispute or whether the enforcement target should be enforced.In response to the theoretical dilemma,the author responds to it in detail in the overview section of this article,thus laying a theoretical foundation for effectively solving practical problems.In the part of the objection lawsuit filed by outsiders to execution,the author introduces several views in the current academic field in detail,and analyzes them one by one,so as to conclude that the newly formed litigation is the view that best fits the nature of the objection lawsuit filed by outsiders to execution.In the part of the relationship between the objection lawsuit filed by outsiders to execution and other relief procedures,the author has a completely new interpretation of the relationship between the objection lawsuit filed by outsiders to execution and the retrial,the third party's revocation,and the property right confirmation.In the key part of the referee's execution of the dissent,the author believes that the aforementioned two key points of the trial should not be treated separately,but should be combined through a certain system design to clarify the judge's judgment.On the practical level,there are also many problems with the system of the objection lawsuit filed by outsiders to execution.The author summarizes four typical problems,Including the failure to effectively play the role of the pre-procedure to execute the objection,the unification of the grounds for the objection of the objection,the fact that the outsider filed a separate lawsuit of property rights improperly hindered the execution of the original trial,lack of supporting systems to prevent abuses of the objection lawsuit filed by outsiders to execution.The author has studied the relevant provisions of the civil law system and the Anglo-American law system on the objection lawsuit filed by outsiders to execution,and has responded to the problems in China's judicial practice and proposed solutions.Regarding the first point,the author proposes to distinguish the review standards between the execution of objections by outsiders and the complaints of execution of objections,so as to correctly play the role of pre-execution procedures for execution of objections.Regarding the second point,the author proposes to divide the objections of disagreement into the types of ownership,usufructuary rights,security rights,lease rights,creditor's rights,etc.,so as to realize the unification of the reasons for the objections and maintain the authority of the judiciary.Regarding the third point,the author recommends that,compared with the confirmed litigation,the outsider should prefer to the objection lawsuit filed by outsiders to execution,and if the outsider loses the case,the judgment part of the judgment document on the enforcement of the subject right dispute should be given the power of judgment to fundamentally avoid the case.The individual filed a separate suit to confirm power.Regarding the fourth point,in order to prevent the misuse of the procedure,the author proposes to clarify the principle that an outsider filed an enforcement objection and that the execution can only be stopped if a guarantee is provided.