| In recent years,there are more and more retention-of-title transactions in our country,accompanied by a sharp increase in execution applications.How to balance the rights and interests among the subjects in the execution has become the focus of dispute in the execution procedure of property with ownership retention burden.At present,there are only general provisions for reference on the implementation of property with ownership retention of burden in our country.The ambiguity of legislation and the relative blank result in different practices of local courts in judicial practice,the social effect of carrying out property with ownership retention is limited,and the demand of theory research and practice is not symmetrical.Under the influence of the general trend of "difficulty in execution",it is necessary to conduct a comprehensive and in-depth study on the enforcement of property with retention of title.The first part is about the status quo of the enforcement of property with retention of title.First of all,comb the relevant laws and regulations of the enforcement of property with ownership retention of the burden.Secondly,through case retrieval,sorting out typical cases,summed up the status quo of the enforcement of property with ownership retention burden in China,that is to say,there are different attitudes in the practice of execution about whether or not the title reservation is applicable to the real estate,different standards for examining the title reservation in the objection of execution,different judgments on the ownership of the property that is attached to the title reservation,and different judgments on the right to take back in the execution procedure.The second part is about the problems existing in the enforcement of property with ownership retention of burden.On the basis of clarifying the current situation of legislation and implementation,and through induction and analysis,this paper sums up various problems existing in practice,including the lack of legislative provisions,the Anomie of enforcement procedures,and the imbalance in the protection of rights,etc.,provide directional guidance for the improvement of execution procedures.The third part is the reason of the enforcement of the property with the retention of title.First of all,based on the theory of Civil Law and guided by the practice of execution,itanalyzes the problems of execution caused by the absence of the theory of Civil Law,that is to say,the unclear understanding of the applicable object of the ownership reservation leads to the confusion of the object of execution,the unclear legal nature of the ownership reservation leads to the difference of execution,and the different understanding of the nature of the recall right leads to the different judgment results.Secondly,based on the theory of Execution Law,this paper analyzes the problems in the practice of execution,that is,the real right holder is damaged by the formalism,and the examination standard of the objection of the outsider is different.The fourth part is the suggestion for the enforcement of the property with ownership retention burden.Starting from the scientific,rational and prudent implementation of the value of the concept,focus on building a complete,powerful and standardized approach to the implementation of property with ownership retention burden.First of all,the substantial law level consummation,proposes the substantial law introduction publication system,anticipated the power concept and so on,guides the implementation practice through fills the entity law the blank;.First of all,from the point of view that the buyer and the seller are the subject of enforcement,the enforcement procedure should be improved;secondly,in order to prevent the malicious collusion between the non-party and the subject of enforcement,the examination criteria for non-party objections should be unified,third,in order to balance the interests of the parties involved in the execution and the other parties involved in the case,innovative suggestions are put forward as follows: The seller’s creditors apply for the execution of the due claims,finally,based on the tide of the draft of the Civil Code,the author conceives the future prospect of realizing the retention of title by the way of real right of security. |
