Research On The Priority Effect Of The Agreement Of Paying Debts By House In Enforcement Objection

The outsider can rely on and the executor reached an agreement of paying debts by house to exclude the execution of the applicant’s ordinary money claims,in the absence of higher law,the issue in theory and practice are very controversial.Although the enforcement objection is a procedural law relief system,it is also inseparable from the judgment of the substantive law,but the existing research is mostly one-sided insight.Some only from the "civil code"registration of the principle of effective,that the parties to enter into an agreement to settle the old debt,in the completion of the transfer of ownership of housing before the registration,the outsiders only enjoy ordinary claims,based on the equality of debt shall not exclude the implementation;some are directly apply the procedural law norms,that as long as the implementation of the provisions of the objection and review of article 28 or article 29 of the elements,the outsiders can exclude Some of them directly apply the norms of procedural law and believe that as long as the elements of Article 28 or Article 29 of the Provisions on Enforcement Objection and Reconsideration are met,an outsider can exclude enforcement.In fact,both all of them have not achieved the effective interaction between substantive law and procedural law,and have not recognized that agreements of paying debts by house actually contains many types.The essence of the lawsuit is the comparison of the advantages and disadvantages of the rights and interests,so the correct solution should be based on the analysis of the type of the agreement,according to whether the outsider has an interest in the execution of the house,what kind of rights and interests,whether the rights and interests are sufficient to exclude the execution and the elements of the exclusion of the execution in turn.In other words,the validity of an agreement of paying debts by house is a prerequisite for the right holder to enjoy priority and exclude enforcement.The first part of the article analyses the agreement in accordance with the constituent elements,the legal nature and the elements of validity,and concludes that the agreement is in principle an atypical promissory contract,which takes effect when the original debt is valid,if the intention of the parties is true,if it does not violate the mandatory provisions and if there is no malicious collusion.There are many types of agreement of paying debts by house.The second part of the article is based on China’s local judicial practice and combines traditional civil law concepts to explain the meaning and identification of interests in agreements of paying debts by house.They are divided into two broad categories,namely security and satisfaction,according to the different representations.The payment in rem,assignment of security and novation-type agreements give rise to ownership,security rights and ordinary claims respectively.A novation agreement,which converts the original debt into a new debt consisting of the sale of a house,gives rise to an expression of intent to acquire title to the house and therefore enjoys a "right of expectation in rem" by reference to the Enforcement Objection and Review Regulations.The rules for comparing the merits of interests should be based on the norms of substantive law.taking into account the distinctive values of procedural law itself.The third part of the article compares each of the identified interests with ordinary monetary claims and concludes that:at the level of substantive,after transferring to the registration of a house,it excludes the enforcement of a payment in rem because giving rise to ownership;the registration of a postgrant security excludes enforcement when priority is impaired;and the satisfaction of a new debt without a statutory priority is not excluded.At the level of procedural law.The "right of expectancy in rem" is distinguished from the right of expectancy under German law and is a choice made on the balance of interests in our procedural law,as a special protection of the right of delivery in rem to exclude enforcement.In order for a debt modification agreement to actually give rise to a "right of expectancy in rem".the elements of Article 28 or 29 of the Provisions on Objection and Reconsideration of Enforcement need to be met,as these two articles were originally set up to protect buyers of real estate and consumers of commercial properties in general,and their elements are not"tailor-made" for a debt modification agreement.Therefore,the fourth part of the article is an empirical study in the light of the relevant Supreme People’s Court 201 decisions.in which the elements are dismantled and the specific elements of review within the elements are clarified,with a view to forming a useful guide for judicial practice.