A Study On The Lawsuit Against The Execution Brought By The Third Party

The notice The Decision regarding to Amend ‘the Regulations of Cause ofAction for Civil Case’ with the number Fa (2011) No.41was printed and distributedby the Supreme People’s Court on Feb.18,2011and was formally carried out onApril1,2011. The lawsuit against the execution as a second level of cause of actionwas added in the20second level of causes of action of the notice. It is widelybelieved by judicial theory circle and practice circle that this is because the lawsuitagainst the execution system was established officially by the Article204of CivilProcedure Law in legislation, thus the response should be given according to thecause of action by the Supreme People’s Court for the sake of judicial practiceoperation. The lawsuit against the execution was established in our country’s judicialsystem level by the Article204of the newly revised Civil Procedure Law, whichfilled the void of the method of execution remedy in national legal rules and was inline with the law of development of judicature and mainstream trend of the world.However, there are many hot and difficult problems remained to be solved in thedaily operation of the judicial practice which bring confusions to judicial practicalworkers due to the juvenility both in theory and legislation in the initial stage of thissystem. Therefore, on the basis of the introduction of the Lawsuit against theExecution Brought by the Third Party, some hot and difficult problems and personalopinions about these problems are discussed with emphasis and there are someimmature proposals of perfecting the system of the Lawsuit against the ExecutionBrought by the Third Party from institutional aspect. The outline of the Lawsuitagainst the Execution Brought by the Third Party is contained in the first part of thisthesis, the concept and connotation of the Lawsuit against the Execution Brought bythe Third Party are the first to be introduced, and then there is the description of somerelevant system designs about the execution, execution remedy, dissent action ofexecution and the Lawsuit against the Execution Brought by the Third Party inGermany, Japan, Switzerland and Taiwan region, aiming to demonstrate the positivesignificance and necessity of the establishment of the system of the Lawsuit against the Execution Brought by the Third Party in China. Academia is divided about thenature of the civil lawsuit against the execution. It is thought that these views andtheories are reasonable in some aspects or to some degree, but there are some defectsin the understanding of the essential attribute of the Lawsuit against the ExecutionBrought by the Third Party in the comparison of various views and theories. The dualattributes of affirmation and establishment of the lawsuit against the execution shouldbe taken into full account in the analysis of the nature of the lawsuit against theexecution. As a result, the theory of remedy is the most appropriate. The focus of thisthesis is the introduction of the hot and difficult problems in trial in the justicepractice of the Lawsuit against the Execution Brought by the Third Party and somerelatively reasonable and scientific solutions in author’s perspective under currentnational conditions and judicial environment. The difficulties in the trial ofSubstantive Law in justice practice and that of Procedural Law are contained in thisthesis. The difficulties in entity trial are interpreted in depth by the example of thetrial of the Lawsuit against the Execution Brought by the Third Party under the mostcommon case, which refers to the sales and purchases of houses without transferringownership. Meanwhile, the following has been discussed: The lawsuit against theexecution in which belongs to relatively special rename of housing without renamingland use right, or the Lawsuit against the Execution Brought by the Third Party toexecutive object which belongs to rural contracted land use rights and wastelandoperation right. Among which it is important how to understand trialing the Lawsuitagainst the Execution Brought by the Third Party according to Article17of theRegulations regarding to Civil Execution of Seal up, Detaining and Freezing Propertyby People’s Court (hereinafter referred to as Regulations regarding to Sealing up).Therefore, the Article17of Regulations regarding to Sealing up is demonstrated fullyin legislative idea, legislation conflict and practice operation in order to providecurrent judicial practice with some references and inspiration. As for the procedure,two aspects are discussed, they are whether the ownership of executive object in thecase of the lawsuit against the execution can be judged and whether anotheraffirmative petitory action is allowed. In the procedure construction of the Lawsuitagainst the Execution Brought by the Third Party, there are some assumptions about the abolishment, identification of scope of application, the materialization of cause ofaction, the specification of the stage of litigation and tribunal in the pre-procedure ofobjection to execution. The confusions and insights about the trial of the Lawsuitagainst the Execution Brought by the Third Party from the perspective of an ordinaryjudge at present stage are expressed in the end of this thesis, looking forward to themore operational laws, regulations and judicial interpretation about the lawsuitagainst the execution for the sake of making judicial practice operation moreconvenient and pushing forward the development of judicial practice.