执行程序中买受人物权期待权保护法律适用探微

On the Application of Law to the Protection of Buyer's Real Right Expectation Right in Execution Procedure

基于物权期待权理论,对执行程序中不动产买受人的权利进行优先保护。在司法实践中买受人往往采用确权之诉或执行异议之诉两种途径来救济,由于对确权之诉和执行异议之诉的法律性质及法律关系理解不准确而产生诸多问题,致使买受人物权期待权不能得到有效保护。研究认为,执行程序中要明确执行异议之诉的性质为给付之诉,执行异议之诉的目的就是确定是否停止对标的物的强制执行;买受人不能通过确权诉讼或者在执行异议之诉中主张确权来救济,执行异议之诉裁决不会导致物权变动,只能通过执行异议之诉实现对标的物停止执行后,再另行提起给付之诉来完成物权的最终变动。

Based on the theory of expectation right of real right,the rights of real estate buyers in the execution procedure are protected first.In judicial practice,the buyer often adopts two ways to remedy the lawsuit of confirmation of rights or the lawsuit of objection to execution.Due to the inaccurate understanding and application of the legal nature and legal relationship of the lawsuit of confirmation of rights and the lawsuit of objection to execution,the buyer's right of expectation of real rights cannot be effectively protected.According to the study,the buyer can't claim the right to remedy through litigation of right confirmation or litigation of objection to execution,and clearly the nature of litigation of objection to execution is litigation of payment.The purpose of litigation of objection to execution is to determine whether to stop the enforcement of the subject matter,and the execution of the appeal ruling of objection will not lead to the change of the real right.The buyer can only finish the final change of the real right by filing another litigation of payment after the suspension of execution of the subject matter through litigation of objection to execution.