On The Perfection Of The Litigation System Of Debtor's Objection

With the rapid development of China's economy,the development of market economy has led to a large number of civil and commercial cases.Because our country has not yet made a formal enforcement law,under the existing laws and regulations on enforcement and judicial interpretation,the court,as the state public power organ-judicial organ,inevitably appears the problem of "difficult enforcement" in the process of exercising the power of enforcement to urge enforcement,and because of the improper enforcement behavior of the executive organ,"disorderly enforcement" has become Another big problem in the process of implementation in China.Although the Civil Procedure Law of our country has established the basic system of execution relief through legislation,but the part of "debtor's objection lawsuit" is missing in the system.The "debtor's objection lawsuit" comes from German Civil Procedure Law,which is called "the executee's objection lawsuit" in the theoretical circle of our country.What it points to is that The improper execution of the executive organ damages the legitimate rights and interests of the person subjected to execution.Because the executive organ does not know that the substantive legal relationship under the basis of execution has changed,the continued execution will damage the legitimate rights and interests of the person subjected to execution.The improper execution is different from the illegal execution.For such improper execution,China issued the Supreme People's court's objection and reply on the people's court's handling of execution in 2014 The provisions on discussing several issues of the case(hereinafter referred to as "provisions on objection to execution and reconsideration")stipulate that the handling method of objection to execution shall be applied by analogy.However,the system design of objection to execution and reconsideration of execution does not fully protect the rights and interests of the person to be enforced,and violates the principle of separation of trial and execution.In addition,retrial and retrial shall be started separately Because of the different objects of trial,litigation can not replace the function of the debtor's objection litigation.In this paper,I propose to improve the litigation system of debtor's objection,to clarify the legal status of "debtor's objection litigation" in legislation,and to combine with the execution practice of the court,to give my opinions on how to improve the litigation of debtor's objection.The first part,based on the relevant theory of "debtor's objection lawsuit",expounds the meaning,nature,legal status in the execution relief system and the function and social value of debtor's objection lawsuit.The second part of the article analyzes the similarities and differences between the common law system and the civil law system on the debtor objection litigation system from the perspective of comparative law.The third part,based on the legislation and judicial practice of our country,points out the defects of the litigation system of the debtor's objection,including the defects of the existing system of administrative reconsideration,the conflict with the principle of separation of trial and execution,the incomplete protection of the rights of the person subjected to enforcement,and the difficulties encountered by the court in dealing with the debtor's objection in practice.The last part gives some suggestions to improve the litigation system of debtor's objection in China,including strictly abiding by the principle of separation of trial and execution,improving the relevant provisions of the reconsideration system of execution,safeguarding the rights and interests of the debtor,and giving some procedural suggestions to the court in the execution.