“借名买房”案外人执行异议之诉裁判规则再审视

Re-examination of the Judgment Rules on the Non-party’s Action for Enforcement Objection in the Case of “Buying a House in a Borrowed Name”

从101份“借名买房”案外人执行异议之诉的裁判文书入手,梳理审判实务的四种审查路径,并全面审视理论的新发展,指出理论对外观主义适用场景和第三人信赖利益保护范围的反思有其合理性,但是忽略了执行异议之诉的逻辑起点。“动态体系论”是一种有益尝试,但是相关标准有待探讨,在设置涉“借名买房”的案外人执行异议实体裁判规则时,应当秉持共识的“明确权利类型——权益对抗比较”的审理路径,明确借名人享有的权益性质为债权,一般不能排除执行,同时引入“生存权”的保护理念设立例外规则,准许借名人在基于“生存权”的特殊权益保护时排除执行,并将“生存权”外化为以满足家庭日常居住需要的构成要件。

This article starts with 101 judgments involving the non-party’s action for enforcement objection in the case of “borrowing name to buy a house”,carefully combs the four review paths of trial practice,comprehensively examines the new development of the theory,and points out that the theory has its rationality for the reflection on the application scenario of externalism and the protection scope of the third party’s trust interests,but ignores the logical starting point of the action for enforcement objection. The reference to the “dynamic system theory” is a useful attempt,but the relevant standards need to be discussed. It is proposed that when setting up the substantive judgment rules for the non-party’s action for enforcement objection in the case of “borrowing name to buy a house”,we should adhere to the consensual trial path of “clarifying the type of rights-balancing the rights and interests”,clarifying that the nature of the rights and interests enjoyed by the borrower is the creditor’s right,and generally cannot be excluded from enforcement. We should also introduce the concept of the “right to subsistence” to set up exception rules. The borrower is allowed to be excluded from enforcement based on the special protection of the “right to subsistence”,externalizing the “right to subsistence” as a constituent element of meeting the daily living needs of the family.