Throughout the Civil Procedure Law, the vast majority provisions are also focusedon how the parties commenced the litigation. The provisions about the third person are lessthan the parties. At the same time, the academic on the third person is dispersing, so this topicis the theory Ph.D. thesis, which studied on the Withdraw of the Third Person Other ThanInvolved in the Case, and based on the further systematic study. The paper tried to constructthe withdraw of the third person other than involved in the case which were match the civilprocedure in China. Except for the introduction part, the whole paper contains5chapters,about160thousand words. As follows are the main contents.Chapter I Summary of the Withdraw of the Third Person Other Than Involved in theCaseFrom a macro point, this chapter respectively discussed the withdraw of the third personother than involved in the case among the concept, nature and purpose and so on, and itcompared with related systems theory.This paper is discussed in view of relief after the procedure by a third party to protect theinterests, so first of all, it clarified the conception of the "third person". And think that due tothe reason of information asymmetry and other objective reasons, the third person did notparticipate in the civil litigation, but the rights and obligations which the referee instrumentsdetermined, or the person had interests on the object of litigation, or the civil proceduralinterests of the citizens and the legal persons and other organizations, and their interests whichwere infringe by the fraud litigation, or the fraud arbitration, the procedure was for them bytheir requisition for the court of withdrawing or changing the original judgment claims alitigation procedure. The paper didn’t think that the nature of the Withdraw of the ThirdPerson Other Than Involved was not the formation action, but its nature was mixed. Indifferent history, the value of people was constrained, and they understood the purpose of thecivil procedure differently. The procedure of the withdraw of the third person other thaninvolved in the case can achieve the purpose of civil procedure, such as guaranteeing theprocedure, solving the disputes and guaranteeing the interests. At the same time, the withdrawof the third person other than involved in the case can bring out the idea of value, such asprocedure justice, human rights protection and due procedure.ChapterⅡ Theoretical horizon of the Withdraw of the Third Person Other Than Involved in the CaseThis chapter wrote by the theoretical horizon of jurisprudenz, constitutionalism and civilprocedure. Form that, it established the theory basis of the withdraw of the third person otherthan involved in the case.From the theoretical horizon of jurisprudenz, the withdraw of the third person other thaninvolved in the case could reduce the cost and realize the judicial efficiency in the proceduralsystem. In the macro, middle and micro disputes solution, the procedure of the withdraw ofthe third person other than involved in the case embodies the order and freedom. In the angleof the legislative, judicial and purpose, procedure embodied the concept justice and equality.From the theoretical horizon of constitutionalism, procedure was the results and outcomewhich was the counterbalance of the privacy rights and public rights. And it was also animportant litigation system design which was equal to protect the individual rights. Form thetheoretical horizon of civil procedure. The withdraw of the third person other than involved inthe case which based on the judicial relief of the rights of level was a special procedure. Thesetting of the program was not without theoretical support, it has its own theoretical basis as asolid backing: civil right of action theory was the source of right, the validity of judgment wasthe foundation, the interest of action theory and procedures procedure participation is theenvironmental factors.Chapter Ⅲ Foreign Studies of the Withdraw of the Third Person Other Than Involved inthe CaseThis chapter wrote the foreign studies of the withdraw of the third person other thaninvolved in the case systematically. Firstly, it studied the initial history. Then; it discussedcommon law system and civil law system respectively, and conducted a comparative study.The history of the withdraw of the third person other than involved in the case could betraced back to the Rome law on the right of revocation regulations. It did not give the verdictof third separate procedures for protection of the rights in common law, but it regulated someprocedure in the beginning to protect their rights, avoid to providing relief after making ajudgment. At the same time, the common law system regulated the procedure for very fewthird people. The civil law countries or regions was set up specialized procedures for thirdpeople to protect their rights, the most typical example was French and Taiwan. This chapterdescribed in detail about the withdraw of the third person other than involved in the case onFrance and Taiwan. It studied mainly from the legislation system, legislative purpose, special foundation, constitutive requirements and procedure of systematically. For other countries incivil law, this chapter briefly discussed about Germany, Japan, Italy and Macao. In thecomparative study, the paper compared the common law with the civil law, and also comparedthe inner of civil law. Through the comparison, the paper explored the ultimate meaning of thewithdraw of the third person other than involved in the case, for the foundation of developingthe procedure in China.Chapter Ⅳ The Necessity Analysis of the Withdraw of the Third Person Other ThanInvolved in the CaseThis chapter mainly discussed the necessity of construction of the withdraw of the thirdperson other than involved in the case from the analysis of the theoretical model, the legalbasis and the practice.In the theoretical model, the article thought that the withdraw of the third person otherthan involved in the case was adapted to civil litigation theory and civil litigation practice inChina. Meanwhile, it analyzed from the incomplete legal provision and the inadequate reliefpatterns, founding that the current relief procedure can not protect the third people well, andmade the real interests of the third person be in danger. Finally, in the practical factors, thearticle was discussed in three aspects to establish the necessity and the urgency of thewithdraw of the third person other than involved in the case from the relationship betweensocial complexity, the types of cases increased and judicial practice diversification operation.ChapterⅤ The construction of the Withdraw of the Third Person Other Than Involved inthe Case in ChinaIn this chapter, in order to safeguard the interests of the third person, we should build theprocedure of the withdraw of the third person other than involved in the case with Chinesecharacteristics. In legal form, the legal form of China inclined to the civil law system. Fromthe legislative mode, the legislative mode of China inclined to the civil law system. From thetheoretical basis, the theory of the construction of the withdraw of the third person other thaninvolved in the case in China inclined to the civil law system, such as the validity ofjudgment.Therefore, we should adopt the legislation mode of the civil law, which used the doctrineof strict regulation pattern, and set up a special chapter for provisions. Specifically, it shouldestablish independent procedure in China, and this chapter wrote that builting the procedurefrom the legislative concept, framework, system setup and the convergence of systems. In the end, it put forward the legal suggestion draft. |