Entity Review Study Of The Objection To Immovable Property

Since the implementation of the new civil procedure law in 2012,there have been more and more cases of execution objection by non litigants.In the trial practice,the action of execution objection by real estate is more common.As a new type of litigation,the application of different laws in judicial practice leads to great controversy.In this kind of case,the person outside the case does not have the legal real right to the executed real estate,but because the real estate has been applied for enforcement to take preservation measures,the person outside the case cannot fulfill the claim for the performance of the creditor's rights of the person being enforced,that is,the claim for the ownership of the transferred property.In order to protect the substantive rights of the outsider,the law gives the outsider the right to raise objection to execution.In the process of execution,when there is a conflict between the right of application for registration of house transfer and the right of application for execution of money,which right should be protected first cannot be supported by the existing civil law theory.At present,the laws concerning the use of objection to the execution of real estate by outsiders are usually the property law,the provisions of the Supreme People's Court on sealing up,detaining and freezing property in the civil execution of the people's court,and the provisions of the Supreme People's Court on Several Issues concerning the handling of objection to the execution and reconsideration of cases by the people's court,which are in systematic conflict It also leads to different laws applied by judges when they review the objection of real estate execution in judicial practice.In judicial practice,the buyer of real estate has not gone through the transfer registration,there are many situations,the protection conditions and standards established by judicial interpretation have also produced many problems in the application,including whether the relevant provisions are applicable in the lawsuit of dissent of the outsider,and how to identify the specific conditions and standards.In addition,in addition to the general housing sales,there are also outsiders who take the way of housing for debt,house demolition and resettlement,and divorce agreement in practice.Whether their interests need to be protected and what are the conditions for protection are not clearly defined at present,and judicial awareness is not the same.The essence of this is that the intervention of execution leads to conflicts in the realization of substantive rights,and it is a choice for law to balance the conflicting interests.What is the nature of the claim? Why does the claim of the outsider meet the requirements of judicial interpretation resist the creditor's general claim for money?What is the legal basis for the confrontation? Whether the basis for the protection of the outsider's interests can be found in the existing civil law framework has not formed a unified view.Therefore,whether to protect the expectant interests of the house successor without transfer registration is essentially a question which right is more worthy of priority protection when there is a conflict between the transfer registration right of the house successor and the realization of the creditor's claim for money in civil execution.Due to the different ways of expectant interest enjoyed by the outsider,the concrete forms of right conflict are different.Through combing the relevant cases and literature,this paper summarizes the specific manifestations of such rights conflicts in civil execution into five main types.In practice,when dealing with the types of conflicts of real estate rights,some scholars advocate the full implementation of Article 9 of the property law in order to abide by the legal principle of real estate and the principle of publicity and public trust,which leads to the lack of applicability of the provisions on implementation and the provisions on reconsideration of objections to implementation,and whether the outsider pays all the price and actually owns the house,as long as it does not handle the transfer registration,it will If it is not the owner of the law,it cannot resist the enforcement request of other creditors of the person subjected to enforcement.Through combing and examining the current legal norms,it is found that there are irrationalities in this way;and from the analysis of the provisions on the protection of the right of possession in China's laws,the buyer of the house can also fight against the third party based on the legal possession of the house,so it cannot fully implement Article 9 of the property law,and can refer to the conclusion of the application of the "implementation provisions" and "provisions on reconsideration of implementation objections".As the successor of the house,the basis of the right of transfer registration is different.The conflict of rights cannot be established according to each specific situation.It can only be abstract and principled.However,common factors can be abstracted from various types of cases to establish corresponding conflict resolution rules.Finally,this paper attempts to consider the establishment sequence of the creditor's right,the proximity of the realization of the real right,the protection of the surviving right of the successor,the possibility of the realization of the creditor's right without damaging the interests of other creditors,etc.,to solve the legitimate basis of the balance of interests,and create special rules for the settlement of the conflict of rights in the process of implementation.