The essence of the law, the common sense of man

30 years ago, the parents agreed in the divorce agreement that the house belonged to their son and mediated the divorce through the court, which stated that "the marital property has been disposed of in accordance with the divorce agreement". Mother and son have lived in this house for 30 years. After 30 years, the house has been registered in the father's name and has not been transferred to the son.

No one expected that the father would become an executor because he guaranteed for others, and the property under his name would be included in the scope of compulsory enforcement by the court.

When things don't happen to themselves, they can all be light and breezy, and say "who let him not go through the transfer procedures". But if it happens to you, anyone will be upset.

At this time, the public trust system of property rights cannot be used only to deny the son's rights to the house. On the premise that it is possible to exclude the malicious collusion between the person subject to enforcement and his family to evade debts, the law shall protect their lawful rights and interests.

Because, trust in the mediation document and the maintenance of ethical affection are the common feelings of human beings. The consideration of human common sense is the essence of the Dhamma. Only in this way can the judiciary avoid the mechanical application of the law.

Moreover, because the house has the function of living security, the protection of people's survival rights and interests should be superior to the protection of the trust interests of ordinary creditors. Only in this way can the law have a temperature.

The judiciary needs to strike a balance between different rights in order to reflect the value orientation of justice, which is often referred to as "fairness and justice". Only after such consideration can the abstract "fairness and justice" be concrete, and can the people feel "fairness and justice" in every judicial case.

Therefore, a system of public credibility in rem rights is not enough to initiate enforcement procedures, so that people lose their place of security.

——JCG Case Handling Notes, 2021.12.26