试探《执行异议和复议规定》第28条理论支撑

On the Theoretical Support of Article 28 of the Enforcement Objection and Reconsideration Provisions

摘要: 在房屋买卖中，买受人仅享有要求出卖人移转所有权的债权，因出卖人破产或被强制执行导致买受人受到不能房产过户的交易风险，而《执行异议和复议规定》第28条赋予了买受人能够排除法院强制执行出卖房屋的权利。在司法释义中引入德国物权期待权为理论基础，此举忽视我国和德国差异，存在诸多不宜之处。在《强制执行法》酝酿之际，本文欲从《民法典》第209条第一款但书规定出发，探究《执行异议和复议规定》第28条之理论基础，意使其与实体法紧密关联，不做空中楼阁之态。

Abstract: In the sale of a house, the buyer only has a claim to require the seller to transfer ownership, the buyer is exposed to the risk of transactions that cannot be transferred as a result of the seller’s bankruptcy or enforcement. Article 28 of the Enforcement Objection and Reconsideration Provi-sions gives the buyer the right to exclude the court from enforcing the sale of the house. The intro-duction of Germany’s right to expectancy in property as the theoretical basis in judicial interpreta-tion ignores the differences between China and Germany, and there are some inappropriateness. As the Enforcement Law is brewing, this article intends to explore the theoretical basis of Article 28 of the Enforcement Objection and Reconsideration Provisions from the proviso to the first paragraph of Article 209 of the Civil Code, meaning that it is closely related to substantive law and does not act as a castle in the air.