| On the basis of searching and analyzing a large number of cases,this paper summarizes the reasons why the court vetoed or supported the exclusion of compulsory execution on the ground of wrong remittance to the frozen account,and sums up the reasons for different judgments.That is to say,first,there are cognitive differences on the principle of "possession is ownership";second,whether we recognize the difference between the review principle of dissent of execution by the outsider and that of dissent of execution by the outsider.Behind the reason,part of the reason is that some judges put the pursuit of execution efficiency as the primary goal,which leads to the neglect of the requirements and legal logic in the procedure of execution objection.Specifically,this paper thinks that online transfer is different from delivery of physical currency,physical currency has no cause,while online bank transfer source is clear,the amount is clear,and can postscript remarks about the situation,which is obviously different from the absolute inseparability of physical currency.When the remittance account has been frozen,the payee can not control and dispose of the money,the wrong remittance has a strong possibility Identifiability,which has been specified,can not be mechanically applied to the principle of "possession is ownership".In addition,the action of execution objection by the outsider is essentially a kind of litigation.As the final guarantee of the relief of the outsider’s substantive rights and interests,in the trial procedure,the determination of the substantive ownership of the execution object should not be bound by the registration and possession,but should be determined according to the actual ownership by "looking at the essence through the phenomenon".Some courts directly follow the provisions of paragraph 1(3)of Article 25 of the provisions on enforcement objection and reconsideration,and conclude that the remitter is not the obligee according to the account name registered by the bank.However,it is a regulation on how to deal with the written objection raised by the outsider to the object of execution.Whether the objection can be established or not is examined according to the formalization and appearance standards.The application of the principle of formal review of objection to execution in the action of objection to execution,or the direct use of the review conclusion of objection to execution as the judgment basis of objection to execution,is in fact confused with the different review principles between the action of objection to execution by the outsider and the action of objection to execution by the outsider.Therefore,in the lawsuit of execution objection by the outsider,the determination of the substantive ownership of the money involved in the case by the trial judge can not be directly based on the provisions on execution objection and reconsideration.It should be clear that the principle of "possession is ownership" cannot be applied to the wrongly remitted money,but should be determined according to the actual ownership.This paper holds that in the case of the remitter’s written objection to the subject matter of execution,the compulsory execution of the money involved in the case can not be ruled out because of the formal review standard;if the action of objection to execution is further filed,the substantive review standard should be adhered to,and the creditor’s right of the wrong remittance should be deemed to be remitted on the premise that the outsider fully adduces evidence and strictly confirms that it is wrong remittance rather than collusion to evade execution The remitter has the substantial rights and interests enough to fight against the applicant for enforcement,which can exclude enforcement.Moreover,the remitter actually has no major fault and has low imputability.Supporting the remitter’s claim is consistent with the legislative purpose of the outsider’s execution of objection suit,which helps to maintain substantive justice. |
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