The lawsuit of objection to execution and the lawsuit of the outsider applying for retrial and the third party's revocation.
Published:
2021-12-31
Article 227 of the 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, the ruling shall be rejected. 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 in a people's court within 15 days from the date of service of the ruling. As a result, two major systems of relief for outsiders in the execution phase have been formed: the lawsuit of the outsider's execution objection and the application for retrial by the outsider. According to Article 56 of the Civil Procedure Law, the third party who has the right of independent claim and the third party who has no right of independent claim have not participated in the lawsuit because they cannot be attributed to themselves, but there is evidence to prove that part or all of the contents of the legally effective judgment, ruling or mediation statement are wrong, thus damaging their civil rights and interests, within 6 months from the date when it knows or should know that its civil rights and interests have been damaged, it may bring a lawsuit to the people's court that made the judgment, ruling or mediation statement. Judging from the above provisions, the application for retrial by an outsider and the revocation of a third party are ordinary civil litigation, and the result of the litigation does not have the legal effect of excluding enforcement. The appeal of the outsider to enforce the objection does not negate the effective judgment instrument as the basis for enforcement, but only raises an objection to the subject matter of enforcement, with the aim of excluding enforcement. On the other hand, the lawsuit of the outsider applying for retrial and the third party's revocation holds that the effective legal instrument as the basis of enforcement is wrong, and the intention is to revoke or change the original effective legal instrument. In practice, the more controversial issue is whether the priority right holder, such as the security right, applies for enforcement on the basis of the effective decision after the effective judgment confirms its priority, and the outsider raises an objection, whether the remedy should be filed against the enforcement objection or apply for a retrial. For example, the treatment of objections raised by consumer buyers against the application for enforcement of the mortgage based on the effective judgment. In this case, if an objection is raised against the judgment itself, for example, if the mortgage is considered untenable or invalid or the mortgage is falsely established, the outsider has an objection to the content of the judgment itself, and he can apply for a retrial or a third party to cancel the lawsuit. On the contrary, if the existence of the mortgage is recognized and the right is considered to take precedence over the mortgage, he will raise an objection to the subject matter of execution, an action of objection to enforcement should be brought rather than a retrial or a third-party revocation.
Article 227 of the 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, the ruling shall be rejected. 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 in a people's court within 15 days from the date of service of the ruling. As a result, two major systems of relief for outsiders in the execution phase have been formed: the lawsuit of the outsider's execution objection and the application for retrial by the outsider. According to Article 56 of the Civil Procedure Law, the third party who has the right of independent claim and the third party who has no right of independent claim have not participated in the lawsuit because they cannot be attributed to themselves, but there is evidence to prove that part or all of the contents of the legally effective judgment, ruling or mediation statement are wrong, thus damaging their civil rights and interests, within 6 months from the date when it knows or should know that its civil rights and interests have been damaged, it may bring a lawsuit to the people's court that made the judgment, ruling or mediation statement.
Judging from the above provisions, the application for retrial by an outsider and the revocation of a third party are ordinary civil litigation, and the result of the litigation does not have the legal effect of excluding enforcement. The appeal of the outsider to enforce the objection does not negate the effective judgment instrument as the basis for enforcement, but only raises an objection to the subject matter of enforcement, with the aim of excluding enforcement. On the other hand, the lawsuit of the outsider applying for retrial and the third party's revocation holds that the effective legal instrument as the basis of enforcement is wrong, and the intention is to revoke or change the original effective legal instrument.
In practice, the more controversial issue is whether the priority right holder, such as the security right, applies for enforcement on the basis of the effective decision after the effective judgment confirms its priority, and the outsider raises an objection, whether the remedy should be filed against the enforcement objection or apply for a retrial. For example, the treatment of objections raised by consumer buyers against the application for enforcement of the mortgage based on the effective judgment. In this case, if an objection is raised against the judgment itself, for example, if the mortgage is considered untenable or invalid or the mortgage is falsely established, the outsider has an objection to the content of the judgment itself, and he can apply for a retrial or a third party to cancel the lawsuit. On the contrary, if the existence of the mortgage is recognized and the right is considered to take precedence over the mortgage, he will raise an objection to the subject matter of execution, an action of objection to enforcement should be brought rather than a retrial or a third-party revocation.
Key words:
Related News
Zhongcheng Qingtai Jinan Region
Address: Floor 55-57, Jinan China Resources Center, 11111 Jingshi Road, Lixia District, Jinan City, Shandong Province
