A Study On The Application Of Rechtsschein Theorie In The Lawsuit Of Enforcement

As a universally applicable principle in civil and commercial law of various countries,Rechtsschein theorie originated from civil law and has made great progress in the field of commercial law.Rechtsschein theorie is not a principle explicitly stipulated by the law in China,but a generalization of the theory of scholars and judges in theoretical research or trial practice.There are two views on whether the rechtsschein theorie can be applied in the lawsuit of enforcement in both theoretical and practical circles.One point of view holds that in addition to the anonymous rights holder and the nominal rights holder,regardless of whether the applicant for execution and the nominal rights holder have conducted transactions,their trust interests based on the appearance of the facts should be protected,and the priority should be given to the protection of the monetary claims of the applicant.Another point of view holds that there is no transactional legal act between the applicant for execution and the nominal rights holder in the case of execution objection.At this time,there is no applicable space for the appearance doctrine,so the property of the person subject to execution should be determined in accordance with the principle of seeking truth from facts,and the interests of the anonymous right holder should be given priority to protect.The above two views are opposite to each other,which reflects the applicable dilemma of the rechtsschein theorie in the lawsuit of enforcement.In order to break through this dilemma,combined with the opportunity of the Supreme People’s court to seek public opinions on the formulation of judicial interpretation of the lawsuit of enforcement,the author through to the lawsuit of enforcement itself applicable condition,function,value orientation,supplemented by interest measure theory,can draw the conclusion:Rechtsschein theorie can be applied in the lawsuit of enforcement.The application of rechtsschein theorie in the lawsuit of enforcement raised by the the anonymous rights holder can reduce the risk of empty or idle execution objection examination system,restrain the impulse of the party whose right is not suitable to file the lawsuit of enforcement or carry out the false lawsuit,strengthen the awareness of risk prevention of the anonymous rights holder,promote the efficient and stable development of execution activities,make the lawsuit of enforcement better play the function of right relief,and achieve the maximization of comprehensive interests.