Research On Execution Of Objections By Outsiders

Enforcement procedure is the procedure by which the enforcement agency uses the public power of the state to help the parties realize the benefits of winning the case.In order to quickly and efficiently realize the interests of the enforcement creditors,the enforcement agency’s review of enforcement property is limited to formal review and judgment.In the face of a highly developed modern market and the relatively single principle of publicity in our country,the attribution of rights determined by the enforcement agency is often very different from the actual attribution.In this way,the rights of third parties outside the case will inevitably be affected by the enforcement actions."If there is right,there must be relief." The realization of the interests of the enforcement creditor must not be based on sacrificing the interests of others.Since the execution procedure has the risk of causing damage to the rights and interests of third parties outside the case,it is necessary to lay a practical and effective remedy for them.Before the promulgation of the newly revised Civil Procedure Law in 2012,my country used dissent review to solve the problem of improper execution infringing the rights of third parties outside the case.However,this remedy method obviously violates the basic principles of modern civil procedure law,does not meet the requirements of separation of trial and enforcement,and is difficult to reflect substantive justice in litigation.In 2012,the newly revised Civil Procedure Law finally incorporated the long-standing lawsuits of execution objections from outsiders in the civil law system and common law countries and regions into my country’s civil law system.The execution of objections by outsiders in our country has indeed played a certain system value in a short period of time,but it cannot be denied that it has not fully released all the energy it should have.The reasons are as follows: First,the execution of objections made by outsiders is “exotic” after all,and requires a period of “running-in period” under the special judicial environment of our country;There are different opinions on the nature and function of enforcement objection suits and other basic issues,which have a certain impact on the practical operation of enforcement objection suits by outsiders;once again,China’s current legal norms do not provide detailed regulations on enforcement objection suits by outsiders,especially The lack of legislation in terms of procedural structure and operation has directly led to the different specific operation practices of the courts of different jurisdictions in this case,and often caused the embarrassing situation of different judgments in the same case.Therefore,based on the special national conditions of our country,this article attempts to clarify the basic issues of the execution of objections by outsiders,from the perspective of the independent value of the execution of objections by outsiders,expounds the irreplaceability of the system established in my country,and then explores Its ideal procedural structure and special procedural requirements finally put forward a few immature suggestions for the construction of the execution of objections by people outside the case in our country.The main content of the first part of this article is to introduce the basic issues of the execution of objections by outsiders.It mainly includes the analysis of the facts and legal basis,nature,function and independent value of the execution of the objection lawsuit by the person outside the case.The content of this chapter is also the basis for the article to discuss the issue of the structure of the lawsuit against the outsider.The reason is that the execution objection lawsuit of the person outside the case is a kind of ordinary litigation,which should not be treated differently from other lawsuits and targeted legislation.However,due to the consideration of the particularity of the execution of the objection lawsuit by the person outside the case,it is necessary to make special provisions for it to regulate its operation,and this chapter provides a legal basis for it.The second part of this article is used to discuss the structure of the execution of the objection lawsuit by the outsider.Among the many problems in the procedural structure of the execution of objections by outsiders,the most eye-catching problems at this stage are undoubtedly the preservation and abolition of pre-procedures,the types of rights and interests that "enough to exclude compulsory enforcement",and the structure of the main text of the adjudication.This chapter mainly discusses these three issues and points out the problems and shortcomings in practice.The third part of this article is responsible for reflection and reference.Mainly on the basis of reflecting on the reasons for the many problems in the execution of objections by outsiders in our country,and drawing lessons from the legislation and theoretical experience of other countries and regions,so as to derive a theoretical system that is in line with my country’s national conditions and is conducive to my country’s system construction.The fourth part of this article is to provide suggestions for the improvement and development of the execution of the objection lawsuit by the people outside the case in our country.On the basis of the basic principles of the execution of the objection to the outsider,the problem before the objection of the outsider is solved by improving it;addressing the issue of different identifications of "civil rights and interests sufficient to exclude compulsory execution" in various regions,To be resolved through the method of typified provisions;for the problem of shaping the main text of the judgment,it shall be standardized on the basis of confirming the nature of the lawsuit executed by the person outside the case,and ensure that the scope of the subject matter of the lawsuit is consistent with the scope of res judicata.