Research On Excluding Enforcement Of Divorce Real Estate Division Agreement

The house is an important part of the husband and wife’s common property.The two parties often divide the house when they agree to divorce.In reality,there is an agreement that the property registered in the name of one party will belong to the other party,but the two parties have not gone through the transfer registration procedures after the divorce.Under the circumstances,if the creditor of the registered nominee applies to the court for compulsory execution of the property under his name,the agreed right holder will often file an enforcement objection lawsuit by the person outside the case.As this type of dispute involves the property rights,contract,marriage and family laws of the "Civil Code of the People’s Republic of China" and related laws and regulations on civil enforcement,the judges have different opinions on the applicable law in the review of enforcement objections and the trial of enforcement objections.Therefore,the phenomenon of“different judgment results for similar cases,different judgment reasons for the same judgment result” occurs frequently in judicial practice.This article selects four typical cases as the basis of the analysis,and summarizes the four common problems in the current divorce real estate division agreement to exclude enforcement cases,namely,the failure of the pre-procedures for the execution of objections by outsiders,and the property rights of the divorce real estate division agreement.There are disputes about the validity of the change,the identification of the nature of the entity’s rights and interests of the person outside the case is different,and the review criteria for the exclusion of the entity’s rights and interests of the person outside the case are different.The above-mentioned problems arise,on the one hand,due to the insufficient legal provisions related to the execution of the objection,the pre-procedure for the execution of the objection cannot play an effective role,and the judge does not have a clear review standard after the case enters the trial procedure.On the other hand,there is a conflict between the identity law and the property law.It also leads to differences in the judgment of the validity of the real rights of the divorced real estate division agreement in the trial process,and then the judgment of the nature of the rights of the agreed right holders.The nature of the divorce real estate division agreement is still a civil agreement.After the registration becomes effective,the property rights change effect will not occur.It is stipulated that the right holder has the right to request the registration nominee to assist in the transfer registration.If the enforcement claims are only ordinary monetary claims,the effective time of the divorce real estate division agreement is earlier than the establishment of the enforcement claims,and it is agreed that the obligee has occupied the house involved in the case before the seal and has no fault in the failure to go through the transfer registration,then the obligee’s claims can be excluded Mandatory.In view of the increasing number of such cases,the people’s courts should accurately grasp the judgment criteria,unify the understanding and application of the law,and the relevant judicial interpretations should also further refine the “civil rights and interests sufficient to exclude compulsory enforcement”,and on the one hand,make the pre-procedures for execution of objections Really play the role of case diversion.On the other hand,while strengthening the protection of the contracted right holders,the rights of the applicant for enforcement are not damaged,so that the parties can feel the fairness and justice due to such cases,and truly achieve legal and social effects Unity.