Viewpoint... On the legal issues of the wrong notification of the implementation of the objection ruling.

In judicial practice, there are situations in which outsiders raise enforcement objections and the enforcement court makes enforcement objections but mistakenly informs the remedies. In this regard, combined with legal provisions and relevant judgment cases, the enforcement objections examine whether the substantive rights and interests claimed by the outsiders are sufficient to exclude the people's court from enforcement. The enforcement objections examine whether the court's enforcement actions conform to the law and whether they infringe the legitimate rights and interests of the objectors. If the enforcement objection ruling wrongly informs the enforcement objection relief channel, in principle, the enforcement objection ruling shall be revoked and remanded for retrial.

1. The subject of the objection to the execution act.

The subject of the objection to the execution act may be an outsider or a party to the case.

2, the time limit for the objection to the execution act.

If the parties or interested parties believe that the execution violates the provisions of the law, they may submit a written objection to the people's court responsible for the execution. If a party or interested party raises a written objection, the people's court shall examine it within 15 days from the date of receipt of the written objection.

The objection to the execution act shall be raised before the conclusion of the execution procedure, and the execution objection ruling may be made in the course of execution and the execution of the preservation and advance execution of the ruling.

3. Circumstances in which an objection to an act of execution is raised

The law provides for the circumstances in which an outsider can object to the enforcement act. Specifically, an outsider can object to the enforcement act in the following five circumstances: 1. Those who believe that the enforcement act of the people's court is illegal and prevent them from waiting for seizure, seizure, or freezing to be paid; 2. Those who believe that the auction measures of the people's court are illegal and prevent them from participating in fair bidding; 3. Those who believe that the auction, sale or debt-for-kind measures of the people's court are illegal and infringe on their right of first refusal to purchase the subject matter of execution; 4. Those who believe that the matters requested by the people's court for assistance in execution exceed the scope of their assistance or violate the provisions of the law; 5. Those who believe that other legitimate rights and interests have been infringed by the people's court's illegal execution. From the above provisions, it can be seen that the examination of the objection to the execution behavior is whether the execution behavior of the court conforms to the legal provisions and whether it infringes the legitimate rights and interests of the objector. The specific provisions can be found in Articles 5 and 6. 7 of the Provisions of the Supreme People's Court on Several Issues Concerning the Handling of Enforcement Objection and Reconsideration Cases by the People's Courts.

4. Remedies for objections to the execution of acts

If the parties or interested parties are not satisfied with the ruling on the objection to the execution of the act, they may apply to the people's court at the next higher level for reconsideration within 10 days from the date of service of the ruling.

1. Legal concepts

If an outsider raises an objection to the exclusion of enforcement on the basis of the entity's rights, the procedure must be reviewed by the enforcement objection after a formal review of the enforcement objection because it involves a review of the rights and interests of the outsider's entity and the need to weigh whether the protection of the outsider's rights and interests takes precedence over the protection of the rights and interests of the applicant for enforcement. The action of the execution objection examines whether the entity interest of the outsider in the subject matter of the execution is sufficient to exclude enforcement.

2, exclude the implementation of the objection period.

The objection to the exclusion of execution shall be raised before the termination of the execution of the subject matter of execution to which the objection is directed; if the subject matter of execution is assigned by the parties, it shall be raised before the termination of the execution proceedings. The objection to the exclusion of execution may be raised at the stage of preservation in addition to the stage of execution.

3, exclude the implementation of the objection to the review period.

The enforcement court shall complete the review within 15 days from the date of receipt of the enforcement objection.

4, exclude the implementation of the objection to the ruling of the remedy.

An outsider or party to the case may, within 15 days from the date of service of the ruling, file a suit for objection to the execution of the ruling with the people's court.

There are three ways to solve the problem of wrongly informing the remedy of the execution objection ruling in judicial practice.

There is a difference between the exclusion of an enforcement objection and an enforcement action objection, which is based on the exclusion of enforcement against the subject matter of the entity's interest in the subject matter of enforcement. The objection to the execution act is based on the existence of an interest in the subject matter of the execution and the damage to the rights and interests caused by the court's illegal execution act. Specifically, the exclusion of an enforcement objection is a necessary condition for the existence of an enforcement act against the subject matter of enforcement, and if the enforcement court mistakenly informs the outsider or the party in the enforcement objection ruling of the remedy, if the enforcement review procedure should have been initiated to resolve it, it is instead informed of the action to file an enforcement objection. In this regard, Article 105 of the judicial interpretation of China's Civil Procedure Law stipulates clear conditions for outsiders to file enforcement objections. In the stage of enforcement objections, it is necessary to examine whether it conforms to the legal circumstances of filing enforcement objections.

In view of this, if you are not satisfied with the remedies set out in the execution objection ruling, you can file an execution objection suit or apply for execution reconsideration in accordance with the remedies set out in the execution objection ruling, and request a review of the compliance with the execution objection suit or whether the execution objection is filed after entering the procedure.

In this regard, we can refer to Article 13 of the "Answers to Several Questions Concerning the Trial of Cases of Objection to Execution by the First People's Court of Shandong High Court", which stipulates that "How to deal with cases of objection to execution filed by parties against execution acts? Answer: If the parties only file an enforcement objection against the enforcement act, and do not request the exclusion of enforcement of the rights and interests of the claimed entity of the subject matter of enforcement, the ruling shall not be accepted; if it has been accepted, the ruling shall reject the prosecution and inform the parties to comply with the provisions of Article 225 of the the People's Republic of China Civil Procedure Law through the enforcement objection reconsideration procedure." Article 13 of the Jiangsu High Court's "Guidelines for the Trial of Cases with Objection to Enforcement" stipulates that "if the people's court is found to have incorrectly informed the remedy in the execution objection ruling during the trial of cases with objection to enforcement, how to deal with it? In the process of hearing the case of objection to execution, the people's court finds that the outsider raises an objection to the execution act, and if the enforcement department informs the outsider and the applicant to file an objection to execution in the execution objection ruling, it shall rule to reject the lawsuit and explain to the outsider and the applicant to resolve the case through the execution reconsideration or execution supervision procedure."

The second way of relief adheres to the view that Article 232 of the Civil Procedure Law is a way of relief granted by law, the execution objection ruling has not taken effect and the way of relief specified in the execution objection ruling does not belong to the judgment item, so the parties or outsiders of the case have the right to file a reconsideration of the execution objection ruling including the way of relief, or to file a claim for execution objection, or to take a way of relief for execution supervision.

In this regard, the legal provisions that can be used for reference can be found in Article 72 of the provisions of the Supreme people's Court on several issues concerning the Enforcement of the people's Court (for trial implementation), which stipulates that "if the higher court discovers that the rulings, decisions, notices or specific enforcement acts made by the lower court in the course of enforcement are improper or wrong, it shall promptly instruct the lower court to correct them." Article 234 of the the People's Republic of China Civil Procedure Law stipulates that "in the course of execution, if an outsider raises a written objection to the subject matter of execution, the people's court shall examine it within 15 days from the date of receipt of the written objection, and if the reason is established, it shall rule to suspend the execution of the subject matter; if the reason is not established, it shall rule to reject it. If the outsider or party refuses to accept the ruling and considers the original judgment or ruling to be wrong, it, it, it shall proceed in accordance with the procedure." Article 3, (I), paragraph (IV), of the "Guide to Execution Supervision Cases" stipulates that "if you refuse to accept the execution objection ruling and fail to apply for execution reconsideration or file an execution objection lawsuit within the statutory time limit because it cannot be attributed to the complainant," the people's court may file a case for supervision if it reflects that the execution is illegal and there is no other legal execution relief procedure to file a complaint.

The point of view of the third remedy is that the enforcement objection and the enforcement review procedure are only whether the rights and interests of the outsider to the subject matter of the execution are sufficient to exclude the enforcement and the legality of the enforcement act. If the claim is tort damages or liability for breach of contract, it can be resolved by another lawsuit. The "Several Opinions of the Supreme Court on the Reasonable Allocation and Scientific Operation of Enforcement Power" has clearly stipulated that "the seizure of the people's court has excluded the right to enforce the subject matter in another case". Therefore, if a tort claim against the enforcement applicant or the preservation applicant is brought on the grounds of tort damages, there will undoubtedly be obstacles to filing a case. If another lawsuit is filed to preserve the respondent or the person subject to execution to bear the liability for breach of contract, in the case of not involving the ownership of the subject matter, a separate lawsuit may be filed, after all, the enforcement objection and enforcement reconsideration do not review the breach of contract by the person subject to execution or the preservation of the respondent.

Comparing the advantages and disadvantages of the three remedies, it can be found that the advantage of the first remedy lies in the legal issue of filing an enforcement reconsideration or enforcement objection in accordance with the remedy specified in the enforcement objection ruling, without worrying about the legal issue of the time limit for filing an enforcement reconsideration or enforcement objection. Because the time limit for the application of enforcement reconsideration or enforcement objection is legally exempt, once the wrong remedy is chosen, there may be a risk of litigation that the remedy is exhausted. The disadvantage is that choosing the wrong remedy may face litigation risks such as time-consuming cases, asset transfer to evade debts, and loss of equity remedies. The problem with the second remedy path is the difficulty of filing a case in the case of wrongly informing the remedy path of the execution of the objection ruling, after all, the form of filing a case by the filing court is different from the substantive review of the case. At the same time, it is also faced with the risk of litigation that causes loss of power once the wrong perception of the way to remedy the case. The third way of relief lies in the issue of property ownership of the subject matter of execution, which cannot be resolved by another lawsuit.

As for the wrong way to inform the remedy of the execution objection ruling, the judicial practice has the solution of way one and way two. If the dispute involved in the case is not resolved according to the correct remedy due to the wrong way to inform the party of the remedy of the execution objection ruling, the solution of revoking the execution objection ruling and sending it back for retrial is adopted in principle. Case 4 is the judgment case of the supreme law, and the judgment point is in the execution objection, if the execution objection ruling is wrongly informed of the remedy (the lawsuit for the execution objection should be informed but the execution reconsideration should be informed), the execution ruling should be revoked. Through the main text of the case, it can be found that the relief route taken in cases 1 and 3 is the first relief route, and the relief route taken in case 2 is the second relief route. In the searched cases, no judgment documents were found to directly correct the wrong remedy procedure in the enforcement objection lawsuit, enforcement reconsideration or enforcement supervision procedure. Such correction is also based on the large difference between the enforcement objection lawsuit, enforcement reconsideration and enforcement supervision procedure. The enforcement reconsideration procedure can be reviewed in writing, the enforcement objection lawsuit adopts the second instance final adjudication system, and the enforcement supervision procedure belongs to the petition relief method.

Main text of the adjudication document:In the case of a dispute over private loans between Wang Xiufang, the executor of the court's execution, Zhang Kun and Deng Hongyan, the executor of the case, Zhang Jiaqi, an outsider, raised a written objection to the seizure of the property in Room 1304, Building 13, Yulongwan under his name. At the same time, he considered the seizure procedure illegal on the grounds of not informing the relevant situation and relief measures. After accepting the case, the court formed a collegial panel to review it according to law and made (2021) Wan 1621 Zhiyi No. 51 executive ruling on June 8, 2021. The Court found that the ruling was indeed wrong and conducted a review in accordance with the law, which has now been concluded.

After examination, it was found that in the case of a dispute over private loans between Wang Xiufang, the executor of the court's execution, Zhang Kun and Deng Hongyan, the executor, Zhang Jiaqi, an outsider, raised a written objection to the seizure of the property in Room 1304, Building 13, Yulongwan under his name, and at the same time considered the seizure procedure illegal on the grounds of not informing the relevant information and relief measures. After examination, the hospital made an executive ruling (2021) Wan 1621 Zhiyi No. 51 on June 8, 2021: rejecting the objection of the objector Zhang Jiaqi. And inform the parties that the remedy is "if the outsider or the party is not satisfied with the ruling and thinks that the original judgment or ruling is wrong, it shall be handled in accordance with the trial supervision procedure; if it has nothing to do with the original judgment or ruling, it may bring a lawsuit to the people's court within 15 days from the date of service of this ruling."

Zhang Jiaqi refused to accept, filed a lawsuit against the execution. After hearing, the Court held that the case should be essentially an objection to the execution of the act and should inform the parties of the right of reconsideration. Therefore, a civil ruling (2021) No. 5147 at the beginning of the Republic of Anhui 1621 was made: Zhang Jiaqi's lawsuit was rejected. No appeal was filed within the statutory deadline.

This court holds that if the people's court seals up, detains or freezes the property of a third party in violation of the rules of judgment of property ownership, and the third party raises an objection to enforcement, it shall be examined in accordance with the provisions of Article 225 of the Civil procedure Law. In this case, the house involved in the case is registered in the name of the objector, and the objection to the execution of the seizure raised by the objector shall be examined in accordance with the provisions of Article 225 of the Civil procedure Law, and the parties shall be informed of the right of reconsideration in accordance with the law. The execution ruling of our hospital (2021) Wan 1621 Zhiyi No. 51 is indeed wrong and should be revoked.

To sum up, the case was discussed and decided by the trial committee of this court, in accordance with Article 154, Paragraph 1 (11) of the the People's Republic of China Civil Procedure Law, the Supreme People's Court's decision on the People's Court's discovery of the pre-litigation preservation ruling made by the People's Court and the ruling made in the enforcement procedure. Errors and the People's Procuratorate's Reply on How the People's Court Should Deal with the Pre-litigation Preservation Rulings made by the People's Court (Fa Shi [1998] No. 17), the ruling is as follows:

The 1. revoked the executive ruling of the hospital (2021) Wan 1621 Zhiyi No. 51;

2., this case will be reexamined and dealt with by this court.

Main text of the adjudication document:In the case of dispute over the loan contract between Dalian Jinzhou yinhai micro-loan co., ltd. and Shi fuzhong, the executor of the court, the three complainants applied for objection to the court's execution. after examination, the court made (2016) Liao 0213 zhi yi 64 execution ruling on November 8, 2016 and delivered it to the three complainants. On April 15, 2021, the Trial Committee decided that (2016) Liao 0213 Zhiyi No. 64 enforcement ruling was wrong in applying the law and informing the objector of the legal remedy, and the enforcement supervision procedure should be initiated to correct it. After the case was filed, a collegial panel was formed in accordance with the law to review it, and the review has now been concluded.

After examination, on November 16, 2014, the court issued (2014) Jin minchu zi no 2066 civil judgment, ruling that the defendant (subject to execution) Shi fu is loyal to return the plaintiff (subject to execution) Dalian Jinzhou yinhai microfinance co., ltd. to borrow 1.9 million yuan and interest within 10 days after the judgment comes into effect....... On July 29, 2015, the court issued (2015) Jin zhi zi no 426 ruling and notice of assistance in execution to the outsider (complainant): detain and withdraw the rent for the second year (deducting the paid 300,000 yuan), the third year and the fourth year that the executed person should enjoy when renting to the house located at xx road xx in Dalian development zone. during the detention period, the money shall not be paid to anyone for any reason. On September 5, 2016, the court issued (2015) Jin zhi zi no 426 notice of debt performance to outsiders. The outsider filed an objection to the execution with the court. after examination, the court issued (2016) Liao 0213 zhi yi 64 execution ruling on November 8, 2016, rejecting the outsider's application for objection. in the ruling, the outsider and the party concerned are informed that if they are not satisfied with the ruling, they may bring a lawsuit to the court within 15 days from the date of service of the ruling.

The outsider filed an objection to the execution of the lawsuit with the court within the legal time limit. on may 16, 2017, the court issued (2016) Liao 0213 min Chu no 5437 civil ruling, ruling to reject the lawsuit of the outsider. The outsider is not satisfied and files an appeal. The Dalian Intermediate People's Court issued a civil ruling (2017) Liao 02 Minzhong No. 7837 on October 20, 2017, ruling to reject the appeal and uphold the original ruling. However, at the same time, it pointed out the errors in the application of law in the court's (2016) Liao 0213 Zhiyi No. 64 enforcement ruling and (2016) Liao 0213 Minchu No. 5437 civil ruling, and explained to the complainant that the refusal to accept the (2016) Liao 0213 Zhiyi No. 64 enforcement ruling can be resolved through enforcement reconsideration or enforcement supervision procedures.

The court believes that the facts found in the (2016) Liao 0213 Zhiyi No. 64 execution ruling made by the court are true and confirmed, so as to make a ruling rejecting the objection application of the opponent. However, the application of the law and the wrong way of legal relief to inform the opponent should not apply the provisions of Article 227 of the the People's Republic of China Civil Procedure Law, but the provisions of Article 225 of the the People's Republic of China Civil Procedure Law, inform the objectors of the right to apply to the people's court at the next higher level for reconsideration within the statutory time limit. To sum up,(2016) Liao 0213 Zhiyi No. 64 execution ruling shall be revoked, and the execution objection review department of our hospital shall re-examine and make an execution ruling. In accordance with Article 204 of the the People's Republic of China Civil Procedure Law and Article 129 of the Provisions of the Supreme People's Court on Several Issues Concerning the Enforcement of the People's Court (for Trial Implementation), the ruling is as follows:

The 1. revoked the (2016) Liao 0213 Zhiyi No. 64 execution ruling made by Dalian Jinzhou District People's Court on November 8, 2016.

2. this case by the Court to re-execution objection review.

In the case of a dispute over a private loan contract between the original executor Cao Lei and the executor Chengdu Southwest Metal Technology Co., Ltd. (hereinafter referred to as "Southwest Metal Company"), Wang Xianzhong, Xia Danhong and Hangzhou United Metal Industry Holding Co., Ltd., the court issued (2014) Wei Zhi Yi Zi No. 364-2 Execution Ruling in April 2015, frozen the executed Southwest Metals Company's due creditor's rights of 5 million yuan to the third party Chengdu Guangcheng Technology Co., Ltd. (hereinafter referred to as "Guangcheng Technology Company"), and deducted the corresponding amount in February 2019. The third person, Guangcheng Technology Company, filed a written objection to the Court. On September 2, 2019, the Court made (2019) Lu 10 Zhiyi No. 51 Execution Ruling Letter, rejecting Guangcheng Technology Company's execution objection and informing it that if it refuses to accept the ruling, it may file a lawsuit for execution objection.

After Guangcheng Technology Company filed a lawsuit against execution objection, the court filed a case for trial and made a civil ruling (2019) No. 193 at the beginning of the Republic of China on October 9, 2019, rejecting the lawsuit of Guangcheng Technology Company. The reason is that Guangcheng Technology Company is the debtor of the executed person and does not belong to the interested party. It has no right to file a lawsuit for execution objection in accordance with Article 227 of the Civil Procedure Law, and should claim rights through other legal procedures. After Guangcheng Technology Company appealed, the Shandong Higher People's Court (hereinafter referred to as the Provincial Court) upheld the court's ruling.

On August 21, 2020, Guangcheng Technology Company filed a complaint with the Court on the grounds that the Court (2019) Lu 10 Executive Ruling No. 51 informed it of the error in the relief channel, resulting in its lawsuit against the execution of the objection being rejected, etc., and the Court made the (2020) Lu 10 Executive Ruling No. 3 on October 20, 2020, on the grounds that (2019) Lu 10 Zhiyi No. 51 Execution Ruling was correctly examined by the entity but the relief method expressed was wrong, (2019) Lu 10 Zhiyi No. 51 Execution Ruling was revoked, and the objection of Guangcheng Technology Company was heard by the entity, and the objection request of Guangcheng Technology Company was rejected. At the same time, Guangcheng Technology Company was informed that "outsiders and parties in the case are not satisfied with this ruling, A reconsideration may be filed with the Shandong Higher People's Court within ten days from the date of service of this ruling".

Guangcheng Science and Technology Company reconsidered to the provincial court, which issued (2021) Lu Zhifu No. 71 execution ruling on April 25, 2021. Guangcheng Science and Technology Company rejected Guangcheng Science and Technology Company's application for reconsideration on the grounds that the case did not fall within the scope of review of the execution reconsideration procedure.

After discussion, the trial committee of this court held that the execution of the objection ruling and the execution of the supervision ruling to inform the party of the wrong way of relief should be revoked and the objection should be reviewed again. In accordance with the first paragraph of Article 198 of the the People's Republic of China Civil Procedure Law, Articles 11 and 17 of the Provisions of the Supreme People's Court on Several Issues Concerning the Handling of Enforcement Objection and Reconsideration Cases by the People's Court, and Article 61 of the Provisions of the Supreme People's Court on Several Issues Concerning the Enforcement of the People's Court (for Trial Implementation), the ruling is as follows:

The 1. revoked the execution ruling of our hospital (2019) Lu 10 Zhiyi No. 51;

2. Revocation of the Court's (2020) Lu 10 Executive Ruling No. 3;

3. the court to re-examine and deal with the implementation of the motion.

The Court believes that the focus of the dispute in this case is mainly the nature of the execution objection raised by the outsider Zhang Jinxia.

First of all, according to the nature of the execution objection, the execution objection is divided into the objection of an outsider and the objection of the parties and interested parties. An outsider's objection is that the outsider believes that the execution of the people's court infringes its substantive rights and is based on an objection to the substantive rights of the subject matter of execution, such as the right to claim ownership, exclusive possession, use right, etc. of the subject matter that is sufficient to prevent the transfer and payment of the subject matter. If the claim cannot be supported in execution, the outsider has the right to file a lawsuit to resolve the dispute; the objection of the parties and interested parties is because the execution behavior of the people's court violates the procedural regulations and infringes on the legitimate rights and interests of the parties and interested parties in the execution case. The objection cannot prevent the execution of the subject matter., And can claim the right to damages for the consequences of the execution, if you request correction or compensation for the damage caused by the wrong seizure, auction, sale, detention, fine and other compulsory measures, if the claim cannot be supported by the enforcement court, you can apply to the people's court at the next higher level for reconsideration. Under special circumstances, the objection raised by the interested party may not only include the objection to the execution act, but also the objection to the entity right of the subject matter, thus resulting in the competition of the right to claim the objection. In this case, the objection to the entity right of the subject matter will absorb the objection to the execution act and the multiple objection requests of the interested party, In the relief, the dispute shall be resolved according to the procedure of the objection of the outsider.

As far as this case is concerned, the opponent Zhang Jinxia claimed that he signed a commercial housing sales contract with the developer, purchased the No. 16 shop of the 23# commercial and residential building in Lingjie Community, paid all the purchase money and registered for the record, and enjoyed the ownership of the above-mentioned property. Therefore, the execution objection proposed by Zhang Jinxia is a claim of substantive rights to the subject matter of execution and should be an outsider's objection.

Secondly, the question of applicable law. As mentioned above, this case should be characterized as an outsider's objection, and it should be in accordance with Article 227 of the Civil Procedure Law that "during the execution process, if an outsider raises a written objection to the subject matter of execution, the people's court shall receive the written objection. Review within 15 days from the date of review, if the reason is established, rule to suspend the execution of the subject matter; if the reason is not established, rule to reject. If an outsider or party to the case is not satisfied with the ruling and believes that the original judgment or ruling is wrong, it shall be handled in accordance with the trial supervision procedure; if it has nothing to do with the original judgment or ruling, it may bring a lawsuit to the people's court within 15 days from the date of service of the ruling. The Jincheng Intermediate People's Court conducts a review in accordance with Article 225 of the Civil Procedure Law and gives the parties the right to reconsideration, which is an error. After the parties applied for reconsideration, the Shanxi Higher People's Court did not correct the wrong enforcement ruling of the Jincheng Intermediate People's Court, but reviewed and made an enforcement ruling, which also applied legal errors.

To sum up, some of the reasons for Yuantai's complaint are established. Shanxi High Court (2014) Jin Zhi Fu Zi No. 18 and Jincheng Intermediate People's Court (2013) Jin Shi Fa Zhi Zi No. 53-2 are wrong in the application of the law and should be revoked. With reference to Article 204 of the the People's Republic of China Civil Procedure Law and Article 129 of the Provisions of the Supreme People's Court on Several Issues Concerning the Enforcement of the People's Court (for Trial Implementation), the ruling is as follows:

1. revoke the execution ruling of Shanxi Higher People's Court (2014) Jin Zhi Fu Zi No. 18;

The 2. revoked the executive ruling of Jincheng Intermediate People's Court of Shanxi Province (2013) Jin City Fa Zhi Zi No. 53-2;

3., the case was re-examined and dealt with by the Intermediate People's Court of Jincheng City, Shanxi Province.

There are differences between the exclusion of execution objection and the objection of execution behavior in the request matters, the scope of examination and the relief channels. How to choose the relief mode and how to protect the rights in the case of the wrong notification of the relief channels in the execution objection ruling, this paper provides reference for the legal provisions and case guidelines, and makes a brief analysis of the litigation risks of the three relief channels.