The Effect Of Excluding The Compulsory Enforcement Of Creditor’s Rights

The most common enforcement measure adopted in the enforcement of monetary claims is to seal up and forcibly dispose of the property of the person subjected to enforcement.The judgment of "the property of the person subjected to execution" in the execution procedure is based on the appearance of rights.If it has been registered,it shall be based on the registration;If it is not registered,the movable property shall be in possession and the immovable property shall be in accordance with the records in the examination and approval documents.This has infringed the substantive rights of the actual obligee whose "name" and "reality" do not match.In practice,it is quite common for an outsider to raise an objection to execution based on the contract of ownership change,especially the contract of real estate ownership change.In order to unify the judgment standards,conditions for excluding the enforcement of contractual claims are issued by the courts,but they are different.The phenomenon of exclusion of enforcement of creditor’s rights breaks through the boundary between right in rem and creditor’s rights in the traditional civil law theory.The theorists have put forward two theories with the nature of real right in view of this phenomenon,which are widely used by courts in the reasoning part of judicial documents.However,the expectant right of real right in China is not a concept at the level of real right,and the substantive right it refers to still belongs to the category of creditor’s rights.It is impossible to determine the definite boundary from creditor’s rights to expectant right.There are three different opinions on the establishment of the expectant right of real right and the conditions for excluding the execution.The expectant right of real right in practice is extremely expansive and cannot be unified.The argument on why the creditor’s right can be excluded from execution by the theory of expectant right of real right falls into a causal cycle,which cannot provide legitimacy for the exclusion of execution of creditor’s right.There are two kinds of theory of real right in fact.The theory of real right in fact adopted by the action of objection to enforcement goes beyond the applicable boundary of real right in fact.It believes that the transfer of ownership occurs when the ownership is handed over for possession,which is obviously in conflict with the registration and publicity system,and fails to explain why the creditor’s right of delivery for possession can be excluded from enforcement.Another theory of real right in fact deviates from the original meaning of real right in fact and advocates defining the claims excluded from enforcement as real right in fact based on the consideration of legal policy,but it does not clarify why these claims can exclude enforcement.These two theories provide legitimacy for the phenomenon of exclusion of enforcement of creditor’s rights by virtue of the concept of real right.In fact,whether the contractual claims based on ownership change can exclude enforcement is affected by the registration capacity of the subject matter,the mode of property right change and the effectiveness of registration.In China,who adopts creditor formalism,registration does not have absolute effect.Occupation,filing and advance notice registration still have the effect of right presumption for the registered real estate and special movable property.The contractual creditor’s rights recognized by possession,filing and advance notice registration for the purpose of ownership change can coexist with the real rights recognized by registration.A bona fide third party has the duty of care for publicity methods other than registration,reliance on registration without fulfilling the duty of care does not constitute reasonable reliance,which cannot be recognized as a bona fide third party protected by law.Therefore,the exclusive effect of possession,filing and advance notice registration makes the creditor’s rights effective against the third party,which can exclude the enforcement applied by the third party.For movable property and unregistered immovable property,because there is no registration publicity,possession has the publicity function for the creditor’s rights about movable property and unregistered immovable property.The Civil Code gives possession exclusive effect similar to real right,and possession protects and strengthens the creditor’s rights to obtain the effect against the third party to exclude the enforcement of monetary creditor’s rights.This is the legitimate basis for the exclusion of enforcement of claims aimed at ownership change in China.Therefore,the enforcement of exclusion of creditor’s rights based on publicity requires a valid contract for the purpose of ownership change and an exclusive publicity method.The conditions such as payment of the price,prior to seizure,and no fault for not handling the transfer registration are not directly related to whether the creditor’s rights can be excluded from enforcement.These conditions are set to screen the authenticity of the contract behavior and whether the parties have the malicious intention of escaping debts.