Research On The Litigation Requirements Of The Objection Lawsuit Of The Third Party

The objection and the objection lawsuit of the third party system,which was added to the article 204 of the Civil Procedure Law in 2007,provides a procedural framework of relieving the substantive rights and interests of the third party.There are still many problems in the system for the reasons of overly principled legislation,incomplete judicial interpretation and pluralistic judgment rules.Improving the objection lawsuit of the third party system may start from the theory of litigation requirements.On the one hand,the research on the theory of litigation requirements among Chinese academic community mainly focuses on ordinary civil procedures,barely pays attention to the objection lawsuit of the third party which is arising after the commencement of the enforcement proceedings.On the other hand,the research on the objection lawsuit of the third party among Chinese academic community mainly focuses on the role of this lawsuit in the enforcement relief system,on the selection and application of this lawsuit and procedure for trial supervision,on preservation or abolishment of the objection,on the connotation of civil rights sufficient to exclude enforcement.These contents are actually the specific litigation requirements of the objection lawsuit of the third party.The two have the possibility and significance to combined research.As a consequence,taking the theory of litigation requirement as a new research perspective,this paper applies the methods of hermeneutic of law,empirical analysis and comparative analysis comprehensively,re-examines and comprehends the objection lawsuit of the third party,forms the litigation requirements’ system and grasps the system macroscopically,then further research on partial sub requirements.It may promote the development of the objection lawsuit of the third party.The modern theory of litigation requirements holds that the litigation requirements are the legality requirements for litigation.The requirements of ordinary civil litigation can be divided into requirements of the court,requirements of the parties,and requirements of the subject matter of the litigation.Based on current regulations in China,the litigation requirements’ system of the objection lawsuit of the third party mainly includes "within the prosecution time",court jurisdiction,the proper parties,clear claims,no relation to the original judgment and rule,grounds for objection.The time limit requires the lawsuit must be prosecuted during execution,after the objection of the third party,within 15 days after the rejected rule arrived."During execution" should be interpreted as "before the end of the execution of the object of objection","termination of execution" should be interpreted as "the execution of the disputed subject matter is terminated".Although the objection of the third party has been widely criticized,it still has practical value in the judicial environment in China and it is not advisable to be abolished hastily."Court jurisdiction" requires the third party brings the lawsuit to the enforcement court.The objection lawsuit of the third party does not belong to exclusive jurisdiction of the article 34 of the Civil Procedure Law.In practice,how to determine the enforcement court need to analyse specifically because of execution by mandate,preposed objection and challenge system."The proper parties" requires that the proper plaintiff of this lawsuit is the third party who was rejected in the objection to the subject matter of execution,who enjoys sufficiently substantive rights to exclude execution on the subject matter of execution,the proper defendant is the execution applicant,the person to be executed is listed as a co-defendant or third party appropriately."Clear claims" requires that the claims of this lawsuit should include excluding execution,the claim of confirming rights can be proposed incidentally."No relation to the original judgment and rule" is an important condition for determining the application of the dispute to the objection lawsuit of the third party rather than the procedure for trial supervision.It is an important element for determining whether the lawsuit is legal.In practice,we can separate the fact finding section from the main text of the judgment in the original judgment document,combining the ideas of the guiding cases published by the Supreme Court.As long as the claim of the third party is unrelated to the main text of the judgment,it can be considered as "no relation to the original judgment and rule"."Grounds for objection" include ownership,usufructuary right,security interest,occupation,leasehold,creditor’s rights,expectation right of real right.During the litigation requirements stage,the grounds for objection raised by the third party should belong to civil rights that can exclude compulsory execution.It is not matter that if the rights exist or not,it should be tried among entity requirements of this case.Therefore,"grounds for objection" is one of the litigation requirements that is most closely related to the entity requirements in this lawsuit.Trying the grounds for objection can transition to the entity stage of this case.