Research On The Problem Of Litigation Of Objections From Outsiders

In the current judicial practice,there is a phenomenon of "random execution",which seriously interferes with the order of execution and infringes upon the lawful rights of the subject of execution.As an important enforcement remedy,the lawsuit of an outsider's objection can protect outside parties' legitimate civil rights on the subject of enforcement from the enforcement.Its nature should be classified as a new type of remedy,which has the functions of confirming rights and excluding execution.The value objectives of this system are to protect the legitimate civil rights of outsiders,restrict the abuse of public power,and realize the principle of "separation of trial and execution." Theoretically,the litigation of objections from outsiders should exclude improper enforcement actions,achieve relief for outsiders,and balance the rights and obligations between the enforcement subjects according to law.However,due to the lack of legislation,the system currently has some problems that restrict it from exerting good effects,such as: the pre-procedure of objections by outsiders to restrict the right to sue,ambiguous provisions on the cause of rights,the time limit for filing an objection,the urgency of the objection,and the subject matter in the objection.Rights and other issues.The original legislative purpose of the pre-case dissent objection was to reduce the trial burden by diverting the dissent objection.An opposition action filed by the third party means that the third party,who has a substantive right on subject matter of execution enough to resist execution,file an action before the executive court to suspend execution on the subject matter before termination of civil execution.An opposition raised by the third party is the prepositional procedure for an opposition action filed by the third party.During the course of enforcement,if a third party raises a written opposition to the subject matter of enforcement,the executive court should review that opposition within 15 days after the receipt date.If the opposition is untenable,it shall be rejected.If the third party is not satisfied with thatruling and consider some error in the original judgement or ruling,it shall raise retrial procedure.If the opposition is irrelevant to the original judgement or ruling,the third party may file an opposition action within 15 days after the receipt of ruling.Institutional goals for an opposition action filed by the third party include affirmation and protection for legal interests of the third party,and practice of judgment-and-execution apartment principle,and prevention for abuse of public power.In judicial practice,as a prepositional procedure,while an opposition raised by the third party causes delay in execution and decrease of executive efficiency,with no aid of reduction of workload for the executive court,it didn't provide protection for interests of the third party in time.For opposition actions,provisions on cause of action are general,which left some space for local policy,and then,opposition actions with the same cause may receive different judgements in different courts.The third party should file an opposition action within 15 days after the receipt of rejection ruling,before the termination of execution.That time-limit may prevent the third party from relief by opposition action because the third party usually has no chance to get executive information in time.The relation between the opposition action and the affirmative petitory action is ambiguous,which hinder the third party from protecting for own rights.In Germany and Japan,similar opposition actions filed by the third party are provided in Civil Execution Act.In Germany,the third party may file opposition action to prevent transfer for property right,the third party may file opposition action to prohibit transfer for debt,and the third party may file opposition actions for community property.In Japan,the third party may file opposition action should be trailed jointly with the affirmative petitory action on the same subject matter of execution.Those experience may be our reference.In the short term,Civil Procedure Act may not be amended,nevertheless,judicial interprets and judicial policies may be published,in order to improve opposition action raised by the third party and to provide better protection forinterests of the third party.As a prepositional procedure,an opposition raised by the third party should be cancelled.Provisions on cause of opposition action should be clear and concise.Execution notice should be improved to inform the third party executive information in time.The relation between the opposition action and the affirmative petitory action should be clarified,and those actions should be trailed jointly under certain circumstance.In the judgement of opposition action,judges should confirm the substantive right of the subject matter of enforcement,in order to resolve the dispute thoroughly.