案外人异议之诉
张卫平案外人异议之诉
Action Filed by a Third Personon the Subject Matterof Enforcemen
期刊名称：《法学研究》
期刊年份：
作者：张卫平
单位：清华大学法学院
中文关键词：执行救济;案外人异议之诉;命令诉讼说
英文关键词：relief for errorof enforcement;action filed by a third personon the subject matter of
enforcement;law suit for order
中文摘要：
新民事诉讼法第204条虽然设置了案外人异议之诉，但规定过于简单，在该诉的构造和适用要件方面尚有诸多内容需要通过司法解释和司法判例加以充实和完善。案外人异议之诉是执行救济的一种方法和手段，其目的在于阻止或撤销执行机构对执行标的的执行，在性质上属于特殊的命令诉讼。案外人异议之诉适用于所有的对财产的强制执行。
英文摘要：
204 of the new Civil Procedure Law of China stipulates that, “If, during the course of enforcement, a person who is not involved in the case raises a written objection to the subject matter of the enforcement, the people’s court shall review the written objection within 15 days after receiving it. If the objection is tenable, the people’s court shall rule to suspend the enforcement on the subject matter; and if the objection is untenable, it shall be rejected. If a person who is not involved in the case or a party involved is not satisfied with the ruling and considers that there is an error in the original judgment or ruling, it shall be dealt with according to the procedure of adjudication supervision; and if a written objection is irrelevant to the original judgment or ruling, the relevant party may file a lawsuit with the people’s court within 15 days after the ruling is served.” That is to say, if the error concerning the subject matter of enforcement is not attributed to the original judgment or ruling, a person who is not involved in the case can achieve the relief for his substantive rights by way of filing a lawsuit. However, there exist still some questions about the so said lawsuit, such as its function and nature, its plaintiff and defendant, its area of application, etc., which should be clarified. According to the tradition of civil law system, there are principally three types of lawsuits, that is, the lawsuit for performance, for confirmation and for alternation. But the so said lawsuit belongs to none of them. It is a special type of lawsuit, having dual functions and purposes, that is, to confirm the substantive right of the plaintiff on the subject matter of enforcement, and meanwhile to order the enforcement organ to terminate or withdraw the enforcement on the subject matter. To the contrary, in a pure confirmation or alternation suit, such dual purposes cannot be satisfied.The plaintiff of the so said lawsuit is the person who is not involved in the original case but argues substantive right on the subject matter of enforcement. Usually, the defendant of the so said lawsuit is the applicant of enforcement, only in special circumstance can the obligor of the original case also be the defendant. The so said lawsuit can be applied as long as the subject matter of enforcement is about property. Keywords: relief for error of enforcement, action filed by a third person on the subject matter of enforcement, lawsuit for order
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