| As a kind of check-and-control enforcement measure,Seal-up plays an important role in the civil enforcement procedure,and the effectiveness of Seal-up is also the core issue of the Seal-up system.According to the current legislation of our country,the effect of the Seal-up of real estate in the civil enforcement procedure has not yet formed a systematic stipulation,and the relevant judicial interpretation is also quite limited.There are many disputes in the academic circles about the effectiveness of the Seal-up of real estate.With the title of "the effectiveness of the Seal-up of real estate in civil enforcement",this paper starts with the provisions on the effectiveness of Seal-up in China’s current legislation and judicial interpretation,combined with the relevant legislation of extraterritorial countries and regions on the effectiveness of Seal-up in civil enforcement,this paper makes a systematic analysis of the effectiveness of the Seal-up of real estate,hoping to contribute to the improvement of the sealing system in the civil enforcement procedure of our country.This paper is divided into four parts:The first part is the theoretical basis of the effectiveness of real estate seizure in civil enforcement.This part takes the concept of seizure in the civil enforcement procedure as the starting point,and makes a comprehensive definition of the basic connotation of Seal-up with reference to the relevant regulations of extraterritorial countries and regions.In order to make a clear understanding of the connotation of the Seal-up,it also discriminates and analyzes the related concepts,including Seal-up and Detainment,Seal-up of movable property and Seal-up of real estate,pre-seizure and Queue up for Seal-up and so on.So as to clarify the nature of the Seal-up of real estate;secondly,it discusses the methods of sealing up of real estate,compares and analyzes the shortcomings of the methods of sealing up of real estate in our country by drawing lessons from the relevant legislation of extraterritorial countries and regions,and puts forward suggestions for improvement.Thirdly,it analyzes the actual role of real estate seizure in our country,which leads to the value of the research on the effectiveness of real estate seizure;finally,through the analysis of the relevant regulations on the effectiveness of real estate seizure in our country,this paper puts forward the systematic conception of the effectiveness of real estate seizure,which mainly includes three aspects: time effect,objective effect and subjective effect.The second part is about the time effect of the Seal-up of real estate in civil enforcement.China’s current law does not clearly specify the effective time of the Seal-up of real estate,and there are many disputes in the academic circle,so there is an urgent need for legislation to clarify it.Before exploring the effective time of the Seal-up of real estate,we should first know the effective elements of the Seal-up of real estate,and then combine the relevant regulations of extraterritorial countries and regions on the effective time of the Seal-up of real estate,in order to reveal the best effective time of the Seal-up of real estate in our country.That is,when the sealing order made by the court is served on the execution debtor or when the letter of assist issued by the people’s court is served,it shall be regarded as the effective time of the seizure of immovable property at the previous point in time.Finally,the reasons for the failure of the Seal-up of real estate are summarized,and the failure time of the Seal-up of real estate is defined.The third part is about the objective effect of the Seal-up of real estate in civil enforcement.This part mainly focuses on the scope of the object involved in the effectiveness of the Seal-up of real estate,that is,the effectiveness of the Seal-up of real estate and what it belongs to.Obviously,the effectiveness of the Seal-up must be related to the Seal-up of the subject matter itself,so whether the effect of the Seal-up of real estate is of course related to the accessory thing,fruits and its substitution still needs to be discussed.If the land use right is seized,its effect applies to the buildings on the land,and similarly,if the buildings on the ground are seized,its effect is also applied to the land use right.Starting from the current legislation,combined with judicial practice,this part analyzes the shortcomings of the provisions on the effectiveness of the Seal-up of real estate in our country,and strives to clarify the objective effect of the Seal-up of real estate.The fourth part is about the subjective effect of the Seal-up of real estate in civil enforcement.This part is mainly divided into four sections,which respectively expounds the specific effects of real estate seizure on debtors,creditors,third parties and other state organs.First of all,this paper analyzes the scope of the debtor,and on this basis,from the point of view of "relative invalidity",probes into the restrictions of real estate seizure on the debtor’s right of disposition,right of use,right of possession and right of income.Secondly,the scope of creditors is analyzed from the perspectives of "individual relative effectiveness theory" and "procedure relative effectiveness theory".On this basis,the problem of creditor enforcement distribution is discussed.Then,it analyzes the specific effect of real estate seizure on thehighest mortgagee,buyer and lease owner;finally,starting from the problem of "repeated seizure",it discusses the effect of real estate seizure on other people’s courts and administrative organs.And combined with the legislation of foreign countries,as well as the legislation of Chinese Taiwan and related theories to make a comparative study,and strive to improve the relevant provisions of our country,hoping to be helpful to the improvement of the seizure system in civil enforcement. |
