执行异议之诉中不动产买受人异议权利保护研究——以王岩岩诉徐意君、北京市金陛房地产发展有限责任公司案外人执行异议之诉案为例

Study on the Protection of Objection Right of Real Estate Buyer in the Action of Execution Objection—Taking the Case of an Outsider’s Execution Objection of Yanyan Wang v. Yijun Xu and Beijing Jinbi Real Estate Development Co., Ltd. as an Example

从王岩岩诉徐意君、北京市金陛房地产发展有限责任公司案外人执行异议之诉案入手,不动产买受人作为案外人在提起执行异议之诉时,因法条适用理解时产生歧义以及举证分配的不公会产生对不动产买受人不利的诉讼后果。不动产买受人作为弱势一方,其民事权益理应得到保护。该民事权益是完全所有权准备阶段的期待权,属于物权化的债权。最高法的指导性案例对相关法条的理解具有很高的参考价值,而在庭审过程中根据法条进行举证成为阻碍买受人保护其异议权利的另一阻碍,正确分配举证责任成为保护其异议权利的有效措施之一。保护处于弱势一方的买受人无可厚非,但在保护时也应当注意因保护或者过度保护带来的负面影响,例如买受人与出卖人之间串通进行恶意诉讼,对此的判断、防范以及规制应当纳入相关保护的完善范畴内,以期获得较好的救济效果。

Starting from the case of an outsider’s execution objection of Yanyan Wang v. Yijun Xu and Beijing Jinbi Real Estate Development Co., Ltd., when the real estate buyer, as an outsider, filed the case of the execution objection, it would have adverse litigation consequences to the real estate buyer due to the ambiguity in the understanding of the application of the law and the non-distribution of evi-dence. As a vulnerable party, the civil rights and interests of the real estate buyer should be pro-tected. The civil rights and interests are the expectation rights in the full ownership preparation stage, which belongs to the creditor’s rights of real rights. The guiding cases of the Supreme People’s Court have high reference value for the understanding of relevant laws, and in the process of trial, providing evidence according to the laws becomes another obstacle to hinder the buyer to protect his right of objection, and the correct allocation of the burden of proof has become one of the effective measures to protect his right of objection. There is nothing wrong with protecting the buyer who is in a vulnerable position, but we should also pay attention to the protection or excessive protection of negative effects during protection, such as the buyer and the seller collusion between malicious litigation, the judgment, prevention and regulation of this should be included in the perfection of the relevant protection, in order to obtain good relief effect.