Research On The System Of Objection Of The Person Subject To Execution

In June 2022,China’s Civil Enforcement Law(Draft)was released and solicited comments from the public,and its article 88 stipulates the litigation system for objections by the person subject to enforcement.However,the draft does not distinguish the grounds for objection according to the nature of the basis for enforcement,does not include the unqualified subject of the enforcement person into the scope of the cause of objection,and does not provide specific and clear provisions on the time when the cause of objection occurs.This article focuses on the analysis of the objection grounds in the objection system of the person subject to enforcement,and puts forward suggestions for system improvement based on the legislative experience of civil law countries(regions)on the objection grounds of the lawsuit,combined with the judicial practice of our country.In addition to the introduction and conclusion,the full text is divided into four parts.The first part is about the legislative issues of the objection lawsuit of the person subject to execution.In China’s judicial practice,the debtor’s need for substantive rights remedies is very urgent,and the debtor’s objection lawsuit provided for in Article 22 of the Provisions on the Enforcement of Notarized Debt Documents cannot be applied to other enforcement grounds.The setting of objection grounds in the "Draft Enforcement Law" does not take the nature of enforcement basis as the basis for division,the scope of objection grounds does not cover the disqualification of the person subject to enforcement,and the objection to application for execution requirements should not be included in the scope of objection grounds,which is unreasonable.In addition,the Draft Enforcement Law also stipulates a relatively general and broad setting on the time when objections occur,the restrictions on filing and the time when objections can be filed.The second part is the basic theory of the objection lawsuit of the person subject to execution.The determination of the connotation of the lawsuit determines the type and scope of the subject matter of the objection.In the initial stage of the establishment of this lawsuit in our country,its connotation should be given a relatively broad definition,so as to cover more types of objection grounds.The judgment of the nature of the lawsuit directly affects the scope of its res judicata.The newly formed statement is in line with the theory of abstract enforcement claims and the traditional theory of the nature of litigation,and it can also solve the problem of the scope of res judicata of the lawsuit.The third part is a comparative examination of the litigation system of the debtor’s objection.In contrast,Germany,Japan,and Chinese Taiwan have relatively mature systems of objection against persons subject to enforcement,which have similarities in the types and limitations of objections,and are well integrated with their local enforcement systems.The enforcement system of Taiwan is more similar to that of the mainland of China,and its appeal system for objections by the person subject to enforcement is more far-reaching in terms of legislation.The fourth part is the improvement of China’s litigation system for objections by persons subject to enforcement.The subject matter of the objection of the debtor shall adopt the legislative paradigm of "general provisions + enumeration of causes",distinguish whether the enforcement basis has res judicata,and set up different grounds for objection,which are generally divided into five types: total or partial elimination of the substantive claim,obstruction of the exercise of the enforcement claim,change of enforcement subject,objection to the validity of the enforcement basis,and other causes.In terms of the time limit for the occurrence of the cause of the objection,it should be separately stipulated whether the basis for enforcement has been formed through the verbal debate procedure.In terms of the time limit for filing an objection,the debtor should be allowed to file a complaint outside the enforcement procedure to a limited extent.If there are multiple reasons,they should be raised together,otherwise the effect of loss of rights will occur.No other suit shall be filed for the objection subject matter that has been tried in the opposition suit.