The court of second instance held that although the appellant (the person outside the case) had no right to occupy the building, the relevant laws of property rights also protected other people’s acts of impeding the unauthorized possession.
Click the “blue letter” above to pay attention to our summary: the fundamental problem of the execution of the dissent action by the outsider is not the civil procedure law itself, but whether the execution act has substantive legitimacy, that is, whether the outsider enjoys the rights and interests of the subject matter of the execution in substantive law.
Question raising 2.
Therefore, the appellant (the person outside the case), as the person without right to occupy the building on the ground, had the factual and legal basis to request the removal of the obstruction, and the court supported it.
The decisions of the Supreme People’s Court on such cases are also quite different.
205 in total) Contents 1.
Through the four cases mentioned above, it is not difficult to find that in almost the same period, different local courts have different attitudes towards whether the outsider who occupies the illegal building enjoys the civil rights and interests excluding compulsory execution.
However, Peng Zilu, the outsider of the case, is the occupier of the house involved in the case.
In this case, Liu Zhonghua, an outsider, claimed to the court that “he has the civil rights and interests to exclude the compulsory execution of the illegal buildings in his possession”.
Question raising How to deal with the lawsuit of execution objection against the outsider whose execution object is illegal buildings, China’s judicial practice is different.
The judgment of the second instance held that the possession of the consideration paid is also protected by the real right.
In case 4 of the local court (support: possession of illegal buildings can exclude compulsory execution), the attitude of the court of second instance and the court of first instance is also diametrically opposite in the case of Su Yuanying and Chen Yunxiang.
Possession of illegal buildings can exclude compulsory execution Conclusion 1.
Case 3 of the local court (support: possession of illegal buildings can exclude compulsory execution) In the case of Peng Zilu and Yang Huadong, Zeng Xinlai, the outsider of the case, Peng Zilu, has not obtained the ownership of the house involved, although the legality of the house involved needs to be handled by the government department.
In case 2 of the local court (not supporting: possession of illegal buildings cannot exclude compulsory execution), in the civil judgment of the second instance of Liu Zhonghua and Qi Qiwang’s objection to execution, the court directly denied the civil rights and interests of the outsider by denying the ownership of the illegal buildings, thus holding that the outsider did not enjoy the civil rights and interests excluding the court’s compulsory execution.
Key words: the lawsuit of execution objection by the outsider; Possession; Illegal construction; Subject matter of execution; Civil Rights and Interests Law Forum, Issue 1, 2023 (Vol.
Language selection and concept definition of illegal buildings 3.
There are civil rights and interests that should be protected by law on the illegal buildings, and according to the different circumstances, the judge will make a judgment on whether the civil rights and interests are sufficient to exclude compulsory execution after comprehensive consideration.
(hereinafter referred to as “Bangbang Company”) against the respondent, Shiyan Zhushan Yunshang Microloan Co., Ltd., and the third person in the first instance, Shiyan Jinkaiwei Machinery Manufacturing Co., Ltd., and Jinyuanfa, the Supreme People’s Court held that the plant involved in the case had not been approved The legal construction procedures such as planning permission approval are illegal construction.
The confirmation and handling of illegal construction are not within the scope of civil cases accepted by the people’s court.
The legal orientation of illegal buildings should be determined from both public law and private law.
Therefore, the court of second instance ruled to dismiss the appeal of the outsider and maintain the ruling of first instance to dismiss the prosecution.
The house involved in the case violates the relevant provisions of the Land Management Law, the Urban and Rural Planning Law, and has not obtained the construction land permit or the construction project planning permit in accordance with the provisions of the law, which is illegal construction.
The negation of illegal buildings by public law does not affect the protection of illegal buildings by private law.
The Supreme People’s Court in Case 1 (denying possession of illegal buildings and enjoying civil rights and interests that can be excluded from enforcement), in the case of Shiyan Bangbang Industry and Trade Co., Ltd.
Now select several relevant cases published on the China Judicial Document Network to make a brief analysis: case 1 of the local court (not supported: not within the scope of accepting the case) In the case of Wang Lei, Zhang Li and other outsiders’ objection to the execution of the case, the court of second instance held that whether the appellant (the outsider) enjoys the civil right to exclude the execution of the house in question depends on whether the appellant has the ownership of the house in question, and involves the issue of the confirmation of the right of the house in question.
The court of first instance held that the houses built by the plaintiff (the outsider) on the vacant land without the approval of the land and planning and construction departments were illegal buildings and did not provide sufficient evidence to prove that he had the ownership of the houses involved in the case, so the court rejected the plaintiff (the outsider)’s claim.
The court of second instance rescinded the judgment of the court of first instance rejecting the lawsuit request of the outsider, and changed the judgment to support the lawsuit request that the outsider can exclude the compulsory execution for the possession of illegal buildings.
The court of second instance held that in this case, because the property in question is an illegal building that has not obtained the approval procedures, and the outsider could not prove that he has the ownership of the property in question, it is only based on the actual possession of the illegal buildings, and has no sufficient reason to oppose the court’s compulsory execution.
It should support the outsider’s claim that the illegal building has the substantive rights and interests, and that the outsider has the civil rights and interests that are sufficient to exclude the enforcement of the house involved.
The reason is that there is no consensus on whether there are civil rights and interests that should be protected by law on illegal buildings, and whether the civil rights and interests can be excluded from enforcement.
The court of the first instance should not enforce the house involved in the corresponding enforcement case of the case.
In this regard, theorists and judicial practitioners have not reached a consensus and unified approach.
Position of illegal buildings in private law 4.
In essence, the lawsuit of dissent from the execution of an outsider whose subject matter is an illegal building is whether the outsider can exclude compulsory execution for the possession of illegal buildings.