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Implementing relief is the legal rights of the parties or other stakeholders, for the violation of the law, executive or defects, to the judiciary to seek the legal system of relief. This kind of relief is a procedural relief, and this kind of physical relief with the case of foreign people has a huge difference in judicial practice.

Forced execution procedures and entities are the basis and guarantee of authority and efficient enforcement. The justification of enforcement procedures depends on the strict follow-up and implementation of practical legal norms. Forcing the entity is not only depends on the effective legal instrument as an execution basis, but also depends on the identification and judgment of the subject matter. The former (execution basis) determines the justification of the execution of the rights requested, the latter (executive target authority judgment) determines the justification of the criteria of the responsible property entity. Based on the above analysis, this paper describes the implementation behavioral objections and reconsiderations in the referee case.

In implementing practice, improper execution, obstacle implementation, and the implementation of behavioral objection is the focus of the theoretical research, the implementation relief system of the protection of the party, the implementation of the rights of interest, and the focus of the practice. The implementation behavior disagreement refers to the parties, the stakeholders believe that the implementation procedures such as implementation procedures, implementation measures violate legal provisions, and request the Executive Court to change and revoke the relief system. Executive behavior dissents are in terms of programmatic relief, targeting the active implementation of the actuator (illegal) implementation behavior, the parties, and stakeholders believe that violation of the implementation procedures, does not agree to the execution of the actual implementation, and negative requests to remove their effectiveness before the implementation program terms, objections to the Executive Court will be changed or revoked to eliminate the obstacles of the program legitimacy.

Article 232 of the Civil Procedure Law stipulates: "The parties, the stakeholders believe that the implementation of the law violates the law, and can propose a written objection to the people's court responsible for the implementation. The parties, the stakeholders put forward written objections, the people's court should review within 15 days from the date of the written objection. The reason is established, and the decision is revoked or corrected; the reason is not established, the party, the parties, the stakeholders can not serve the ruling, can serve on the date of the routine to the people's court applied for reconsideration. "About this provision, there are several problems worth paying attention:

01 Ophorage and its relative people

According to the above provisions, the oppositions include the parties and stakeholders. The "parties" here are not limited to the application executor and the executor in accordance with the approved. Also included, other people, such as the rights and obligations of the execution, such as the rights and obligations, and other creditors involved in allocation. The "stakeholders" herein refers to the implementation of their legal rights, and the interests of their legal rights and interests are violated due to enforcement. Article 5 of the Supreme People's Court on Several Issues of Executive  and Reconsideration Cases stipulates that the scope of interest - one of the following circumstances. Natural persons, legal persons, and illegal people outside the parties can be implemented as a re-authoritarian objection:

1. It is believed that the people's courts are illegal, hindering their waiting to seize, seizure, frozen credit; 2. It is believed that the auction measures of the people's courts are illegal, hinder their participation in fair bidding; 3. Thinking of the auction of the people's court, the universal purchase of debt, violating the priority purchase of debt, violating the subject's premium purchases; 4. Those who believe that the people's court requests assistance beyond the implementation of the assistance or violation of the law; 5. It believes that other legal rights have been violated by the people's court behavioral.

The subject matter of the implementation of the objection is the implementation behavior, which usually has an objection relative person in the opposition program due to the "Zero and Game" between the parties. But there will be no objection relatives. For example, when dealing with an executive person property, the actuator has not announced before the auction of 15th, and the executor will apply for the per capita to make an objection. But the objection must not be listed as relative people, and the actuator is not listed as relative people. However, if the specific subject, the specific subject, the stakeholder, should be relatively, which is involved in the objection process.

02 Range of Execution Behavior

Article 232 of the Civil Procedure Law, the provisions of the "Executive Behavior Violation of the Legal" will make an objection. In this general provision, many disputes have caused many controversies in theory and practice, and the mainstream perspective believes that the implementation behavior includes all implementation behaviors in the implementation of the implementation. Objective views believe that if all executive behaviors can be discharged, the judicial resources will be proposed, and the execution efficiency is reduced. The "Civil Procedure Law Judicial Interpretation" has some views that the implementation of the implementation behavior should be restricted: Firstly, it is a limit to the "legitimate rights and interests of violations of the parties, the legitimate rights and interests of the people"; Secondly, it will be "violated" Legal provisions "Only" Civil Procedure Law ", excluding judicial interpretation, the most extensive source of origin is judicial interpretation, normative documents, this view is empty, and this is proposed for objections. Thirdly,time is restricted, for example, "I know or know the execution behavior is within 10 days", finally referred to the usual provisions of the continental legal countries, the determined restriction conditions are " the implementation program termination ".

The first paragraph of Article 7 of the provisions of the Supreme People's Court on Several Issues concerning the handling of execution objection and reconsideration cases by the people's court stipulates the scope of the execution act - if the parties and interested parties believe that the following acts in the process of execution or in the process of preservation or advance execution of the order are illegal and raise objections, the people's court shall examine them in accordance with the provisions of Article 225 of the Civil Procedure Law: 1 Sealing up, detaining, freezing, auction, selling off, paying debts with goods, suspending execution, suspending execution, terminating execution and other execution measures; 2. The period and sequence of execution and other legal procedures that should be followed; 3. Other acts committed by the people's court that infringe upon the legitimate rights and interests of the parties and interested parties.

In addition, there are some cases of review with reference to Article 232 of the civil procedure law, such as objection to case acceptance, objection to jurisdiction, objection to the debtor, etc.

03 legal effect of objection reconsideration

First, based on the pursuit of the value of the efficiency of implementation, the implementation will not be stopped in principle during the period of objection and reconsideration review. Its legal basis is to prevent the parties and interested parties from abusing the execution objection and delaying the execution procedure after reconsideration. Article 9 of the interpretation of the Supreme People's Court on Several Issues concerning the application of the implementation procedure of the Civil Procedure Law of the people's Republic of China stipulates that the execution shall not be suspended during the examination and reconsideration of the objection to execution. If the person subjected to execution or interested party provides sufficient and effective guarantee and requests to stop the corresponding punishment measures, the people's court may grant it; If the applicant for enforcement provides sufficient and effective guarantee and requests continued execution, it shall continue execution. This provision implies a basic interest measurement and value judgment, that is, legislators prefer to protect the enforcement creditor's rights and restrict the enforcement judge's clear position on whether to stop the enforcement, which involves the interests of creditors, dissidents and reconsideration people.

Second, the effect of ruling to revoke or change the original execution. When the objection is found to be tenable after examination, it shall be ruled to revoke or change the original execution in accordance with Article 232 of the civil procedure law. After the ruling takes effect, corresponding measures shall be taken to correct it in the execution procedure. If the other party refuses to accept the ruling, it shall apply to the people's court at the next higher level for reconsideration, and the execution shall not be suspended during the period of reconsideration and examination. The non suspension of execution here refers to the original execution or objection ruling. There are some disputes in practice, but the usual prudent solution in practice is to "suspend the behavior pointed by the objection until the effective ruling conclusion".

04 types of initiation of reconsideration proceedings

It is worth noting that the start of reconsideration cases mainly includes three types: one is to start through objection reconsideration procedure; Second, directly apply to the higher court for reconsideration (such as fines, detention, restrictions on exit, rejection of execution application in the implementation procedure, etc.); The third is to start the correction reconsideration procedure (for example, if you are not satisfied with the restriction of high consumption and inclusion in the list of dishonest persons to be executed, you should first apply for correction in the implementation procedure, and if you are not satisfied with the correction results, you should apply to the people's court at the next higher level for reconsideration).

Procedural execution relief and substantive execution relief jointly help the execution parties and interested parties safeguard their legitimate rights and interests, which belong to post relief measures. The principle of rights protection, the principle of separation of powers and checks and balances, the principle of efficiency and the principle of interest balance are the basic principles of the design of the execution relief system. Only by understanding and applying these principles can we grasp the rights given in the execution relief procedure in judicial practice.

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Statement:

This article was originally written by the lawyer of Garvey law firm and only represents the author's own views. It shall not be regarded as a formal legal opinion or suggestion issued by Garvey law firm or its lawyer. If you need to reprint or quote any content of this article, please indicate the source.