Research On The Debtor’s Right Relief Procedure After The Civil Enforcement Basis Is Revoked

After the conclusion of the execution procedure,if the effective legal document on which the execution was originally based is revoked or altered because of a definite error,the property obtained by the person who originally applied for execution through the original execution procedure shall lose its legal basis and constitute unjust enrichment,and the misplaced substantive legal relationship between the parties shall be restored to its original state.Our country mainly solves this problem by carrying out slewing system.The purpose of setting up the enforcement rotation system is to quickly restore the legal relationship between the original execution parties to the state before the execution procedure after the execution basis is revoked.After the original execution basis is revoked or changed,there is a private right dispute with the nature of payment between the parties,and the parties have the right to obtain relief through litigation.However,Chinese execution turns to ignore the entity factors involved at the beginning of the program design,and adopts the non-litigation mode,that is,through the executive organ to make an execution ruling in the execution procedure.This practice is not in line with the first to make the basis for execution,after the start of the execution procedure of the sequence of requirements,but also make the executive offside,in violation of the principle of separation of trial and execution,but also deprived of the parties to obtain relief in the way of litigation,the lack of procedural protection for the parties.Although our execution turnaround system is simple and efficient,there are still many problems from the perspective of legislation and judicial practice,including the lack of proper execution basis when the debtor applies for execution turnaround,and the violation of the principle of separation of execution and execution when the execution organ makes execution ruling in the execution procedure.The lack of procedural protection,the inability to effectively remedy the debtor’s rights and interests when the situation of execution reversal fails to occur,whether the scope of the object of reversal includes the related costs caused by the proceeding of the original execution procedure,and whether the obligation determined by the effective court can be relieved through execution reversal,etc.Based on the investigation of similar systems overseas and the consideration of protecting the litigant’s right of action and the separation of enforcement and execution,this paper argues that after the original basis of execution is revoked,the debtor can file an action of unjust enrichment to remedy its own rights and interests,and in the case of judgment errors not caused by the litigant’s own reasons,after the original basis of execution is revoked or changed,The original debtor can not get relief through the execution of the loss,put forward into the state compensation thinking.