Research On The Exclusion Of Property Right Expectancy From Enforcement

The exclusionary enforcement rule of the right of expectation in real right is set up to remedy the defects of the registration system in China and to provide preferential protection for the survival rights and interests of consumers.It involves the balanced consideration of the interests of the buyer,the person to be enforced and the applicant for enforcement.It is a problem that procedural law and substantive law intersect.In terms of theoretical interpretation,it is in line with substantive justice and feasible to clarify the priority legal status of the real estate buyer with the German theory of expectant right of real right.First of all,both China and Germany have adopted the principle of dichotomy of property and debt and the formalistic mode of change of property rights in the civil law theory,which has the specific context in which the theory applies.Secondly,the right of expectation of real right actually applied in China is not a kind of factual real right or intermediate right,but a kind of creditor’s right.Finally,in terms of the relationship between substantive law and procedural law,according to the principle of expansion of executive power,procedural law can break through the provisions of substantive law according to its own value judgment,quote the theory of expectant right and grant the creditor’s rights of relevant buyers to exclude the right of execution.Therefore,the right of expectation in real right is a kind of creditor’s right with the effect of excluding compulsory execution in our judicial practice.When the rules are perfect,the relevant system design should follow the principle of balanced protection,the principle of complementarity and the principle of tempering justice with mercy,and supplement the provisions of the relevant substantive law and procedural law while taking into account the principles and characteristics of the action against execution and the execution procedure.On the one hand,in order to effectively protect the legitimate rights and interests of the outsider,in addition to clarifying that the right of expectation of real right can be the objection of the outsider,the application of the principle of execution form should also be weakened and the procedural selection mode of parallel execution objection and execution objection lawsuit should be established in the amendment and supplement of the Enforcement Law(Draft).On the other hand,in order to avoid the excessive expansion of the rights of people outside the case,when necessary,criminal regulations should also be imposed on their acts of malicious collusion to avoid execution or excessive prosecution,and corresponding criminal penalties should be imposed.In judicial practice,China’s current trend of excluding enforcement cases in the name of the right of expectation of real right is expanding.The courts tend to solve various problems with the concept of the right of expectation,but in fact,it has exceeded the category of the right of expectation of real right clearly prescribed by the law,In this regard,it should be made clear that only the general no-fault buyers of real estate,commercial housing consumers,and the right holders of advance notice registration who are determined in the Provisions of the Supreme People’s Court on Several Issues Concerning the People’s Court’s Handling of Implementation Objections and Reconsideration Cases have the right to expect property rights and can be excluded from execution.The relocated people have the right to claim property rights for the resettlement housing,which is not the right to expect property rights but can be excluded from execution.In addition,the obligee who pays off debts with property,the obligee who has gone through filing and online signing,and the obligee who has agreed on the ownership of the house property right in the divorce agreement do not enjoy the right of expectation of property right due to lack of relevant basis.