Study On The System Of Action Against The Person Subjected To Execution

Our execution procedures do not provide specific execution remedy for the rights of the subject entity.The person subjected to execution can only remedy his substantive rights through the execution of objection,separate prosecution or retrial.However,in judicial practice,local courts have different practices on whether the execution objection can deal with the entity dispute of the person subjected to execution.Some courts reject the request of the party on the grounds that the execution procedure does not deal with the entity,and some courts only conduct a simple form of examination.If the person subjected to execution brings a separate suit,the result of the suit will not affect the execution force of the original execution basis,that is to say,after the person subjected to execution brings a separate suit and wins the judgment,he cannot request the court to stop the execution of the original execution basis accordingly.The action of retrial is the procedure of correcting the errors of the effective legal judgment.If the entity rights of the person subjected to execution are not infringed due to the error of the original judgment,it does not belong to the scope of accepting the case of the retrial action,and the person subjected to execution cannot obtain relief through the action of retrial.Therefore,the objection to execution,separate prosecution and retrial can not provide relief channels for the entity rights of the person subjected to execution.In our country,the judicial practice has proved that it is necessary and feasible to establish litigation of the executant’s objection.First,the entity rights of the person subject to enforcement need to be protected in the execution procedure.For example,the original execution basis has been fully or partially performed,leading to the elimination of the original execution basis,or the causes of the execution basis impeding the execution force,etc.,it is necessary to establish legal relief channels for the person subject to enforcement.Second,there is a "blank" area for the relief of the rights of the person subjected to execution in the current civil enforcement procedure.In order to perfect the system of relief for execution and equally protect the legitimate rights and interests of all parties,it is also necessary to establish the objection lawsuit of the person subjected to execution.In addition,in our country,constructing the lawsuit of the execution of dissent has theoretical support of the principle of "separation of execution";There is successful experience of similar dissenting action in judicial practice.So in our country,it is feasible to establish a lawsuit of execution objection.This paper analyzes the nature and status of the litigation of the dissident from both theory and practice,combined with actual situation in our country,and puts forward some concrete tentative ideas about establishing the litigation of the dissident.The first is that the action of the object of objection of the person subject to enforcement is the action of relief,which takes the relationship of rights and obligations of the new entity as the object of action,and its function is to exclude the original execution basis of execution force,so as to realize the protection of the entity interests of the person subject to enforcement.Second,it holds that the action against the person subjected to execution is a special civil procedure in the execution procedure,because it is set up in the execution procedure,compared with the ordinary civil procedure,it has its particularity.The third is to highlight the complementary nature of its relief without affecting the current enforcement relief system.It should be improved in the following aspects: clarify the appropriate parties of the action,clarify the object and condition of the objection,the cause of the objection and its occurrence time;Make it clear that the action is not subject to the execution of objections as the pre-procedure.Fourthly,in order to prevent the maliciously executed person from abusing the action of the executed objection,the punishment system of excessive action is set up.