Research On Debtor’s Objection Lawsuit

In order to quickly and efficiently realize the rights of creditors,in accordance with the principle of separation of trial and enforcement,the enforcement agency only uses the enforcement basis as the enforcement benchmark and adheres to the principle of formality,and has no right to confirm whether the substantive rights actually exist.However,the substantive rights of the commendation on the basis of execution are not static,and may change due to reasons such as repayment,set-off,and reconciliation.At this time,if the creditor still applies for execution on the basis of the original execution,the executing agency has no way of knowing and judging,and continuing the execution is against substantive justice.In order to maintain the proper order of substantive law,civil law countries and regions have generally established lawsuits for enforcement of debtors’ objections to exclude the enforcement power of the basis for enforcement.In China,there is no objection action against the debtor,but there are a lot of disputes of related types.That is to say,the existing alternative systems cannot effectively respond to practical needs,and the system supply is seriously insufficient.Under the intertwining of the efficiency value represented by the formalized principle of enforcement and the fair appeal reflected by the true state of the substantive rights,the best way to solve the problem is to establish an enforcement debtor’s objection suit that can take into account the two and serve the local practice in China.Taking "Why does China need to construct the enforcement of debtor’s objection suits? What kind of enforcement of debtor’s objection suits does our country need to construct?" as a logical approach,this paper systematically studies the historical origins,litigation nature,objections,and litigation of the enforcement of debtor’s objection suits,procedures and other issues,in order to make up for the shortcomings of our country ’ s enforcement relief system,and construct an enforcement debtor’s objection suit with Chinese characteristics.In addition to the introduction,this paper is divided into five chapters.Chapter 1: The practical reflection on the implementation of the debtor’s entity rights relief.Although there is no lawsuit against the enforcement of the debtor’s objection,in order to resolve the substantive rights disputes after the enforcement basis takes effect,China has also established a special system: one is to raise an enforcement objection during the execution,and the other is to file a separate lawsuit.Combing the existing legislative provisions and practical cases,both remedies have obvious shortcomings.First,enforcement objections refer to the specific enforcement action violation remedy policy,mainly in written review,sacrificing the benefits of trial limitation and the party’s right to request a hearing,It is difficult to respond to the need for refined hearing of substantive disputes.Even if the hearing procedure is applied to complex cases,it is more arbitrary to start the hearing,and at the same time,it belittles the interests of the parties,so the procedural guarantee is obviously insufficient..Second,another lawsuit cannot rule out the enforcement power of the original enforcement basis,which may lead to contradictory judgments and seriously affect the stability of the lawsuit.If the enforcement of the previous lawsuit has ended,another lawsuit will not be able to play its due role,making the protection of rights seriously lagging behind.Chapter 2: Demonstration of the establishment of the execution of the debtor’s objection lawsuit.The lawsuit against the enforcement debtor outside the territory provides a good mirror for us to resolve the actual dispute of the enforcement debtor.Sorting out the historical development context of the lawsuit against the debtor’s objection to enforcement outside the territory,it is found that the establishment of the lawsuit for the enforcement of the debtor’s objection is mainly to make up for the insufficiency of the formalized review principle of the separation of trial and enforcement,and to ensure the legitimacy of the enforcement entity.Although the enforcement of debtor ’ s objection suits in Germany,Japan,and Taiwan of China are different in legislative technology,their functions are basically the same.They are all based on the exclusion of enforcement.The specific systems all reflect the pursuit of substantive justice,the efficiency of enforcement,and the emphasis on procedural guarantee.On this basis,we will demonstrate the necessity of introducing the enforcement of debtor’s objection suits in China,and establish the enforcement of debtor’s objection suits,which can respond to the basic requirements of maintaining substantive justice,and resolve substantive rights and obligations disputes after the enforcement basis is established.On the one hand,it conforms to the basic principle of the dual distinction of the enforcement remedy system,which is the remedy for improper enforcement.On the other hand,it can provide the parties with sufficient attack-defense field,which conforms to the dual principle of procedural protection.At the same time,in terms of feasibility,with the steady advancement of the reform of the separation of trial and enforcement,the principle of formalization of enforcement and the separation of substantive and procedural remedies have been gradually established in judicial practice,providing a system for China to construct and enforce debtor objections.ready.Chapter 3: The nature of the enforcement debtor’s objection lawsuit.The nature of the enforcement debtor’s objection lawsuit is the cornerstone of its theoretical research.In terms of the nature of the lawsuit,there are six types of doctrine disputes: the claim that excludes the formation of enforcement,the debtor ’ s claim that the creditor should not apply for enforcement,the claim of negative performance of omission,the claim of negative confirmation that the substantive claim does not exist,the claim of considering that the mandatory execution has the status of confirming the entity’s claim right and the complaint of special relief that excludes the dual function of enforcement,and the claim of the new formation that introduces the theory of point-of-effects.From the essential point of view,the execution of the successful judgment of the debtor’s objection can exclude the enforcement power of the original enforcement basis,resulting in the procedural effect of the court’s declaration that the original enforcement basis cannot be enforced,which is the formation of the litigation in the procedural law.In addition,the subject matter of the litigation and the objective scope of res judicata are closely related to the nature of the litigation.The subject of the lawsuit for the enforcement of the debtor’s objection is the status of the law that excludes enforcement.At the same time,the theory of extension of res judicata and the theory of the effect of exemption of determined facts are used to enforce the debtor ’ s objection.The judgment on the rights and obligations of the entity should have res judicata.Chapter 4: Objections to the execution of the debtor’s objection suit.The objections are divided into three categories: the objection objects with definite effect,the objections without the effect,and other objections.As far as there is a definite effective basis for enforcement,the objection must occur after the enforcement basis is established or after the res judicata,including liquidation,set-off,confounding,exemption,reconciliation and other reasons for the elimination of the claim,as well as obstructions such as the extension of the creditor’s consent and the expiration of the statute of limitations.As far as the enforcement basis is indefinite,the time for the objection to occur is not limited,and the debtor can file an objection suit based on the substantive defects at the time of establishment and the eradication or obstruction of the claim after establishment.Other objections include non-enforcement of the contract,limited inheritance and the right to form.Based on this classification,the argumentation of special objections is also carried out based on the above classification standards: the debtor can file an objection lawsuit based on the execution of internal and external settlement agreement disputes.When the offset in execution is the objection,the existing scope should be broadened and focus on conflicts.For the coordination of creditor’s rights egalitarianism,the case that has already offset the compliance before the benchmark time can also be applied to the objection.The objection cannot be filed on the grounds that the statute of limitations does not apply,and the case cannot be applied for enforcement again at the end of the case.An objection lawsuit is filed on the grounds of expiration of the time limit.In the realization of the security real right ruling,the debtor’s defense based on the subordination of the security real right and the order of liability will generate special objections.In the notarized creditor’s right document,the debtor can file an objection based on the civil rights and obligations specified in the creditor’s right document If the facts do not conform to the law or violate the prohibitive provisions of the law,we should file an objection action..In addition,non-enforcement of the contract and limited inheritance are applicable to the enforcement of the debtor’s objections.With regard to the right of revocation and the right of rescission that have already met the exercise conditions before the benchmark time,in principle,the objection lawsuit cannot be applied.Only when the debtor is unable or unable to file,the cause of force majeure,the delayed performance of the reminder period is not attributable after the judgement time,the debtor may file an objection suit.Chapter 5: The litigation procedure for the execution of the debtor’s objection lawsuit.As far as the scope of application is concerned,in principle,the enforcement of the debtor’s objection suit applies to all enforcement grounds with enforcement power.However,the preservation ruling and the determination of litigation costs cannot be applied to the enforcement of the debtor’s objection suit.From the perspective of facilitating the parties and the legislative technology,the court of jurisdiction for the execution of the debtor’s objections should be the enforcement court.The plaintiff and the defendant shall be the enforcement debtor,the enforcement creditor,and the person affected by the expansion of the nominal effect of enforcement in the enforcement event.When there are several debtors,the majority of the debtors of the share-based debt can file an objection lawsuit separately,and there is no need to jointly file with other debtors.And the judgment is not as effective as other debtors.In joint debts,joint objections only need to be filed separately by a single debtor.The effect of the judgment is the same as that of other joint debtors.For the specific reasons specific to individual debtors,only the specific party is eligible to initiate an objection.When there are several creditors in the enforcement,the joint and joint creditors shall jointly respond to the lawsuit.The enforcement of the debtor ’ s objection lawsuit must be executed after the enforcement has begun and before the end of the enforcement.The execution of the objection lawsuit will not be suspended during the trial period,but the debtor ’ s guarantee can be exceptionally suspended.The litigation request should be differentiated according to the permanent or temporary exclusion of enforcement.When there are several objections,the burden of proof should be allocated together with the original payment of the lawsuit.In addition,based on the consideration of one-time settlement of disputes and prevention of delays in enforcement,there should be no pre-execution procedures for objections.