Study On The Objection Lawsuit Of The Third Party

The significance of establishing the execution objection system in the civilprocedure law is to protect the lawful civil rights and interests of outsiders,to promptly discover and correct errors in the execution of the people's courts.In our country,an outsider's dissenting action means that after the execution process has begun and before it is finished,in the case of the executing creditor,the outsider claims to the executing court his substantive right to exclude the enforcement,bring a lawsuit to the court for cancellation or suspension of the sanction.Its definition reflects that the purpose of the action is to exclude the enforcement of the object of execution,taking the right of objection of an outsider as the subject matter,to claim that it has substantive legal rights(ownership,usufructuary right,security right,creditor's right)that can prevent the transfer and deliver the subject matter for execution,an action formed under the jurisdiction of the executing court and subject to ordinary trial procedures.The right of objection of an outsider in a case is an entity right that an outsider can enjoy in the process of civil execution in China.This entity right is similar to the right of defense and belongs to the category of civil legal relationship.It plays an irreplaceable role in protecting the entity right of an outsider in a case,therefore many countries attach great importance to protecting it in legislation,but Anglo-American law system and continental law system are slightly different in system setting: The Anglo-American law system adopts the dual-track system to run the trial and execution of the dissenting execution of the case by the outsider,that is,to set up a separate execution organ outside the court;The "dual system" is adopted in the executive organ of the civil law system,which means that the executive court and the executive officer,two independent executive organs,jointly exercise the executive power,the advanced legislative achievements of the two legal systems also play an important role in the system construction of our country.The establishment of the system of execution objection by an outsider in China started relatively late.The establishment of article 204 of the civil procedure law of the People's Republic of China,amended in 2007,marked the first establishment of the system ofexecution objection by an outsider in China.Since then,in order to guide the practical action of trial execution more accurately and efficiently,the relevant legislation,judicial interpretation of the Supreme Court and the Supreme Court successively issued relevant provisions to refine and revise the system,and the system of execution objection by outsiders in our country has been constantly improved.However,due to the current legal provisions were not specific or current system design has many unreasonable place,causing the system of prepositional procedure system play a role of expected benefits,restrict an outsider relief way choice,an outsider,bear the burden of proof and lay particular stress on an outsider malicious abuse of rights to evade execution and so on many problems,in practice it is difficult to operate the proceedings.In order to solve the above problems and improve the execution objection system of the outsider,the author suggests to cancel the preposition procedure in order to construct the independent objection lawsuit,and build the related system to reduce the malicious objection to modify the unreasonable preposition procedure.Give an outsider litigation to choose and to prevent abuse of the option specification applicable conditions,to a reasonable option to protect an outsider relief way;To standardize the distribution system of the burden of proof for the execution of dissenting cases by an outsider,we should set up conditions for the exemption of the burden of proof for the outsider and the obligation of proof for the person subjected to execution,and give play to the subjective initiative of the judge to allocate the burden of proof flexibly.In order to optimize the connection between the execution procedure and the execution procedure,the system should be improved by re-affirming the principle of "do not stop execution",clarifying and detailing the legal responsibility of the outsider to assume the exceptional guarantee responsibility and the legal responsibility of abusing the execution objection of the outsider.Fairness and justice is the unremitting pursuit of legislation and judicial practice.The system of execution of dissenting cases by an outsider is a legal net woven by our legislators to protect the rights and interests of an outsider in case because of the effective legal documents of the people's court.