非借名“名实不符”房产之执行异议之诉审判路径的实证分析

An Empirical Analysis of the Trial Path of Execution Objection Litigation for Non-Registered Property with “Mismatched Name and Reality”

摘要: 在执行过程中，非借名“名实不符”房产引发的执行异议之诉，长期类推适用《异议复议规定》第28、29条作为主要裁判依据，但法条实则难以满足裁判之需。并且，在最高人民法院发布的指导案例下，法律适用规则被打破致使类案法律适用混乱不堪，类案裁判思维亦因缺乏统一规范而逐渐偏离制度逻辑，走向区域差异化。因此，可以法教义学为指导，从贴合社会发展实际，凸显保护案外人生存居住之需着手，构建执行异议之诉的排除执行规则。同时，梳理执行异议之诉的原有制度之逻辑与目的，着眼于明晰责任财产范围规范审判思路。

Abstract: During the enforcement process, for enforcement objection lawsuits arising from properties that are not “mismatched name and reality” under a false name, Articles 28 and 29 of the “Regulations on Objection and Reconsideration” have long been applied by analogy as the main basis for judgment. However, the legal provisions are actually difficult to meet the needs of judgment, and under the guiding cases issued by the Supreme People’s Court, the rules for the application of the law have been broken, resulting in a chaotic application of the law in similar cases. Furthermore, the thinking of similar case judgments has gradually deviated from the institutional logic due to the lack of unified norms and moved towards regional differentiation. Therefore, under the guidance of legal doctrine, starting from aligning with the actual situation of social development and highlighting the need to protect the survival and residence of third parties, the exclusion rules for the execution of execution objection lawsuits can be constructed. At the same time, it sorts out the logic and purpose of the original system of the lawsuit for objection to execution, focusing on clarifying the scope of liability property and standardizing the trial thinking.