The Dilemma And The Way Out Of The Outsider's Objection Lawsuit In China

The objection action of an outsider refers to a lawsuit in which the outsider,based on the substantive rights of the subject matter of execution,rejects the objection and applies for the determination of his substantive rights and stops the corresponding compulsory measures.At present,the provisions on the litigation of objection of outsiders in civil litigation in China are not very comprehensive.They only simply stipulate the way of filing and handling methods,but lack of more detailed,systematic design and combing.In academia,there is no unified conclusion on the definition of the litigation of the objection of outsiders,and the rules of the litigation are different in different countries and regions.Therefore,the author makes a study and Analysis on the form and standard of the review procedure of the objection of outsiders,and then puts forward some ideas on how to build a more perfect system of the objection of outsiders in China.First of all,from the concept and characteristics,it is clear that the litigation of dissent of outsiders belongs to a kind of judicial relief system.It mainly aims at the right relief after the review of the implementation of the objection procedure,which can largely safeguard the legitimate substantive power of outsiders to the execution of the object.In addition,according to the provisions of the law on the litigation against the objection of outsiders,the initiation of the litigation against the objection of outsiders must be made before the end of the execution procedure,and only after the rejection of the ruling on the objection of outsiders can the initiation be made.Secondly,the controversy over the nature of litigation against dissent by outsiders has a long history.Looking at some research results of scholars at home and abroad,there are four main theories: formation,confirmation,payment and relief litigation.Four theories have their own merits,but in combination with the provisions of the Civil Procedure Law on the litigation system and the position of the provisions of the chapters,in our country,the characterization of non-litigant objection litigation should be more inclined to the statement of relief litigation.Thirdly,other countries and regions have important reference and objection to the legislation of non-litigant objection.The author has sorted out the relevant legal provisions and practices of Germany,Japan,Switzerland and Taiwan.Several countries and regions allow outsiders to initiate objection suits in the execution process,and emphasize the separation of executive power and judicial power,which tends to transfer the judgement of substantive rights to more professional judicial departments.Fourthly,our country pays insufficient attention to the litigation of non-litigants' objection,and the legislative and judicial interpretations are seriously inadequate.The court's examination of nonlitigants' execution of objection and non-litigants' objection remains in the form and lacks a unified standard,which leads to the stagnation of the development of non-litigants' objection in our country.And the jurisdiction of the litigation of objection by outsiders is not very clear.There are many disputes about the determination of the enforcement court in practice,and there is no unified view on the understanding of "enough to exclude the civil rights and interests of compulsory enforcement".Finally,for the way out,the author gives his own ideas from five perspectives: standardizing the procedure of executing the objection,specifying the jurisdiction of the objection,clarifying the category of "civil rights and interests sufficient to exclude compulsory execution",perfecting the trial procedure,relief system and res judicata.The author holds that the litigant may be the owner,the usufructuary right holder,the security interest holder and the possessor,and that the jurisdictional court should be under the jurisdiction of the court which has made the effective judgment document(i.e.the basis for execution),so as to avoid the situation of unclear jurisdiction when entrusting execution and formulating execution.From the point of view of the trial procedure,the cause of lodging an objection suit is particularly important.We should differentiate the different powers of the claim,and at the same time,we should judge the necessity of obstructing the execution while ascertaining the substantive powers.In addition,in the case of nonlitigants' objection,we should also clarify the relief and strengthen supervision.For the res judicata of the judgment,we should not only recognize its recognition of the legal relationship,but also recognize the decision to cancel the compulsory execution,so as to avoid repeated litigation.