On The System Of The Debtor's Objection

The debtor's objection action is a very important relief system in civil execution procedure.If the rights and obligations recorded in the effective judgment document are inconsistent with the actual rights and obligations,if the executing organ still executes the obligatory right according to the obligatory right recorded in the execution,the substantial rights and interests of the debtor will be damaged.At this time,the debtor to protect their legitimate rights and interests in the way of litigation for the debtor's objection to the action.At present,most countries or regions set up the debtor's objection litigation system to solve the substantive disputes caused by the parties' legal ACTS or other causes in the execution stage after the basis of res judicatae.Therefore,it is an urgent need in our judicial practice to set up the debtor's objection lawsuit system in the enforcement relief system.This paper will study the debtor's objection litigation system through the following four parts:The first part is to discuss the relief limitation of each system in terms of debtor's entity rights and interests through sorting out the institutional provisions on the protection of debtor's entity rights and interests in China's current institutional structure.This paper argues that,first,the implementation of the objection system to resolve substantive disputes in Violation of the "Civil Procedure Law" separation of the basic principles;The retrial system can only remedy the errors of the judgment itself,but it has no room to apply to the retrial system of substantive disputes in execution.A separate lawsuit filed by the person subjected to execution cannot exclude the executive power of the original basis for execution;The scope stipulated in the notarized document of creditor's right is difficult to remedy the debtor other than the notarized document of creditor's right.Second,in the face of a large number of substantive disputes in implementation,and the existing system cannot cope with the situation,this paper discusses the urgency of setting up the debtor's objection litigation system from the perspective of the separation of substantive disputes and procedural disputes,the dialectical relationship between justice and efficiency,and the equal protection of the rights of the parties.The second part focuses on the introduction of the foreign debtor's objection litigation system.Germany and Japan classify the debtor's objection litigation system,and set the preconditions for the court to grant the debtor "execution clause" and "execution visa" respectively during the initiation of the execution procedure.Taiwan does not further distinguish the debtor's objection system,nor does it have pre-launch conditions,but it enumerates the causes of objection in detail.By comparing the differences and common points of the system,the author summarizes the beneficial experience and provides reference for the construction of the system.The third part is about the logical premise of the construction of the debtor's objection litigation system.This paper mainly discusses the purpose,object and legal nature of the lawsuit.This paper argues that the purpose of the debtor's objection action is to eliminate the execution force of the original execution basis and prevent the execution procedure from proceeding.The object of action is not procedural objection right or entity claim right,but is still the entity legal relationship;As for the nature of the debtor's objection action,this paper adopts the viewpoint of relief from the relief function of the debtor's objection action.The fourth part focuses on constructing the assumption of the debtor's objection.Specifically,it expounds the proper subject of the lawsuit,the cause of objection,the time of filing,the type of judgment,the burden of proof,the jurisdiction court of the lawsuit of objection,and puts forward scientific legislative Suggestions.The author thinks that the litigant of the debtor's objection action can carry on the moderate expansion;The debtor can only commence before the termination of the execution procedure after the commencement of compulsory execution;The court of execution shall have jurisdiction over the suit;The causes of objection include subtracting,hindering and non-establishment.