| Where the divorce agreement stipulated that the real estate jointly owned by the two parties but registered in the name of one party shall be owned by the other party,if the transfer registration has not been processed,whether this agreement can preclude enforcement initiated by the creditor of the registered nominee? This issue has arisen dispute in judicial practice.At present,the academic discussion of this issue is limited to the theory of civil entities,and has not been analyzed in conjunction with civil enforcement procedures.Therefore,it is necessary to conduct an in-depth study combining theory and procedure on the preclusion of enforcement from divorce agreement on the real estate ownership.An analysis of 105 selected relevant judgment documents found that there are three viewpoints in judicial determination: the enforcement cannot be precluded,the enforcement can be precluded under certain conditions,and the enforcement can certainly be precluded.In addition,there are three major problems in the judicial determination: first,the courts have different opinions on whether the agreement has the legal validity of transferring real estate rights;second,they have different identifications of the nature of the right to request for transfer registration enjoyed by the other party according to this agreement;third,some courts all held that the agreement could preclude enforcement under certain conditions,but they disagreed on the specific conditions for determination.According to the current civil laws and regulations,the divorce agreement on the real estate ownership has no legal validity of transferring real estate rights,and the right owned by the person who is not a party to the case to request for transfer registration according to this agreement is defined as a creditor’s right,which can be granted special protection if certain conditions are met considering particularity of the divorce agreement.In addition,there are drawbacks to both of the views that the agreement cannot preclude enforcement or that enforcement can certainly be precluded.It should be adopted that the agreement can preclude enforcement under certain conditions,which has both substantive and procedural legitimacy.From the perspective of civil entities,the theory of actual real rights and the theory of the creditor’s rights turning into property right have provided the theoretical support for the above view,which indicates that the special creditor’s rights enjoyed by the outsiders who own the real estate should be protected in real rights.In addition,analogous to the enforcement preclusion of the buyer of real estate,the expected benefits of the outsider in the real estate can be precluded from enforcement under certain standards.From the point of view of civil procedure,since the rights and interests of the outsider during execution can be unrestricted to the rule of the equality of creditor’s rights,and in consideration of the special interests that give priority to protecting the rights of the outsider,the comparison schema should be applied in the case of conflict of two creditor’ rights,and under certain conditions,the interests of the outsider should be favored.Based on the above-mentioned legal justifications,and the mainstream opinion in judicial practice,it is concluded that the agreement can preclude the enforcement when the five conditions are all met:1.the agreement takes effect before the execution of the basic rights of the creditor’s rights;2.the divorce agreement is legal and valid and has been registered.3.the executor of the applicant has no reliance interest in the transfer registration of the real estate;4.it is not due to the the third party that the transfer registration has not been processed;5.the person outside the case owns the property in dispute before the seizure.In addition,when dealing with such cases,the court must also focus on reviewing the negative factors that affect the preclusion of enforcement,which are the intentional collusion between the husband and wife to avoid debts,the basic right of enforcement is based on real estate and the outsider is negative in exercising right to request for transfer registration. |
