论执行程序中的以物抵债

On the Payment in Rem in Enforcement Proceedings

以物抵债系一个聚合性法律概念,包括担保型以物抵债和清偿型以物抵债。依据新债与旧债系并存关系抑或取代关系,清偿型以物抵债又可进一步分为新债清偿与债之更改。债之更改型以物抵债债权人因具备与不动产买受人相同的法律地位,当其满足《执行异议复议规定》第28条各项要件时,即有权排除抵债房屋的执行。以物抵债权利受让人仅在其与不动产实际登记的权利人签订买卖合同,并满足《执行异议复议规定》第28条各项要件时方能排除抵债房屋的执行。以物抵债之“物”之受让人权益受侵害时,依据其权利性质为债权或物权期待权可分别通过竞买规则或执行异议之诉、第三人撤销之诉加以救济。执行法院可依法出具合意性以物抵债裁定和强制性以物抵债裁定,当以物抵债裁定错误时,当事人可以通过执行异议之诉或执行监督程序获得救济。

Debt in rem is a cohesive legal concept,including guarantee in rem and liquidation.Depending on whether the new debt and the old debt are coexisting or substituting relationship,the liquidation type can be further divided into new debt settlement and debt modification.Since the creditor of the modified debt has the same legal status as the buyer of immovable property,it has the right to exclude the enforcement of the bonded house if it meets the requirements of Article 28 of the Enforcement Objection Reconsideration.The transferee of the right in rem can exclude the enforcement of the bonded house only if it has entered into a contract of sale with the owner of the actual registered right to the immovable property and satisfies the requirements of Article 28 of the Enforcement Objection Reconsideration.When the rights and interests of the assignee of the"thing"settled in rem are infringed,according to the nature of the right,the claim or the expectancy right in rem can be remedied through the bidding rules or the enforcement objection action or the third-party cancellation action,respectively.The enforcement court may,in accordance with the law,issue a consensual in rem ruling and a mandatory in rem ruling,and when the in-rem ruling is wrong,the parties can obtain relief through enforcement objection litigation or enforcement supervision procedures.