A Study On Compulsory Joinder Of The Outsider’s Lawsuit Against The Execution Of A Disputed Judicial Decision

When an outside lodges a lawsuit against the execution of a disputed judicial decision and applies for the confirmation of his and interests in the execution subject,should the court try the case jointly? There are different views and practices in theory and trial practice.The lawsuit of dissenting execution and the lawsuit of confirming the right of the outsider shall be tried jointly and a judgment shall be made at the same time.Because it is general rules of law in civil cases that different legal relations cannot be tried together in the same case,however,in Civil Procedure Law of The People’s Republic of China,outsider’s lawsuit against the execution of a disputed judicial decision is listed in a part of procedure of execution,and Interpretations of The Supreme People’s Court on the Application of the Civil Procedure Law of The People’s Republic of China provisions on the establishment of a special chapter to lawsuit against the execution of a disputed judicial decision,the trial procedure of outsider’s lawsuit against the execution of a disputed judicial decision should apply special rule,the compulsory joinder of the lawsuit of objection and the lawsuit of confirming the right of the outsider is different from that of the common civil lawsuit.No matter whether the outsider makes a claim for confirmation of the subject matter of execution or not,and examining the nature and ownership of the substantive rights obtained by the outsider are the preconditions for judging whether the outsider can exclude the enforcement.There is an inseparable relationship between the action object and the judgment mode between the action of objection to execution by the outsider and the action for confirmation of the right by the outsider.The similar necessary joint action theory can be used as a case The theoretical basis of the legitimacy of the enforcement objection suit of outsiders.The compulsory joinder of the lawsuit of objection to execution by the outsider involves the consideration of litigation benefit,execution efficiency and protection of litigation right,which plays an important role in avoiding contradictory judgment,reducing the litigation burden of the parties and solving the difficulty of execution.The compulsory merger of the action of objection to execution by the person other than the case shall list the identity of the party concerned according to the attitude of the person being enforced to the objection of the person other than the case,the person being opposed by the person being enforced shall be listed as the joint defendant,the person who is not opposed by the person being enforced shall be listed as the third person,and the person who is not clearly stated or whose whereabouts are unknown shall be listed as the joint defendant.In the execution of monetary claims,after the subject matter of enforcement is subject to compulsory measures,it shall be prohibited for the outsider to file another action of confirming rights in addition to the action of objection to enforcement.If the outsider files another lawsuit of confirming rights,it shall,according to the situation of acceptance and trial,rule not to accept or reject the action,so as to realize the reverse regulation of compulsory merger.Because after the subject matter of execution is sealed up,seized,frozen and other compulsory measures are taken,the state of the subject matter of execution is different from that of ordinary property,and the disputes arising from the subject matter should be handled through the special litigation procedure,that is,the litigation procedure of dissenting execution by the outsider,otherwise,not only the judicial resources are wasted,but also the contradictory judgment may be produced,which will be malicious to the outsider and the person concerned through the false litigation,we can leave room for the court to implement.The application for compulsory merger should be filed in the enforcement procedure,and only limited to the enforcement of monetary claims.As far as the scope of the compulsory merger trial is concerned,it only includes the claim for confirming rights,not the claim for performance;as far as the subject of the compulsory merger trial is concerned,it should be proposed by the parties;as far as the time limit for the compulsory merger trial is concerned,it should be proposed in principle before the first instance procedural judgment is made.In order to balance the litigant’s right of action and the court’s discretion,it is necessary to apply the common procedure in the trial of the compulsory combination of the litigant’s execution of objection,strengthen the judge’s duty of notice and explanation,and make a unified judgment on the request of confirming the right,and at the same time give the litigant certain procedural objection right.