On The Objection Suit System Of The Third Party Not Involved In The Original Trial

The objection suit system of the third party not involved in the original trial is a revocation system, which established by the paragraph 3 of Article 56 of the Civil Procedure Law of the PRC secondly amended in 2012.The intention of the creation of objection suit system is to regulate malicious litigation, and provide post-procedural safeguard for the third party, who did not attend the original suit for the imputation reasons, but suffered civil rights damage because of the error effective judgment caused by the original suit. Although there is still some controversy about the objection suit system of the third party between practitioners and theorists and even some people regard it as wrong legislation, since it is impossible to modify and adjust the paragraph 3 of Article 56 of the Civil Procedure Law of the PRC in the short term, for the sake of the seriousness of the legislation and the non-selectivity and preciseness of the judicial application of existing legal rules, the top priority is to re-define the system fast and systematically, sort out its basic principle and function, clear its internal structure, define its relationship with the relevant system, construct supporting measures and achieve soft landing and obtain proper judicial performance of the system. Based on this clear academic proposition, the author chooses the objection suit as doctoral thesis. In addition to the introduction and conclusion, the paper is divided into six chapters.Chapter One:An Overview of the Objection Suit System of the Third Party not Involved in the Original Trial. First, it is necessary to redefine the concept of the objection suit of the third party, because in the Civil Procedure Law of the PRC and other civil procedure legal norm, the concept of the person other than involved in the case, interested party, the third party in litigation and the third party not involved in the original trial are in a state of chaos. On this foundation, the paper defines the concept of the system established by the paragraph 3 of Article 56 of the Civil Procedure Law of the PRC. From the perspective of text interpretation and semantic analysis, the concept of the system should be defined as the opposition proceedings of the third party in litigation rather than the objection suit of the third person. But such definition is not conducive to play the function of the system, because the plaintiff range is limited to the third party in litigation. If the term of objection suit is continued to use, it needs more substantial adjustments to existing legal provisions, especially expand the scope of the plaintiff from the third party in litigation to the third party not involved in the original trial. Secondly, the paper analyzes the composition elements of the objection suit. The formal requirements contain the basic connotation of the original and the defendant, the understandings of know or should know, six months, the scope of the objection suit and how to determine the jurisdiction of the court. In the aspect of substantive requirements, the author discusses the importance of program participation and puts forward the third party lack of program participation should be provided special judicial relief, explains the rationality of error judgment should be treated as the object of the objection suit system of the third party not involved in the original trial, demonstrates the burden of proof of the judgment errors that the third party not involved in the original trial should bear, and presents the idea about how to understand the third party has not participated in the original trial because of the reason for not attributable to himself. Thirdly, the paper discusses the necessity and legitimacy of the objection suit system of the third party not involved in the original trial.The current four systems(such as participate in the proceedings, separate action, application for a retrial and lawsuit about the subject matter of the enforcement)are all inadequate, while the objection suit system of the third party not involved in the original trial can make up the deficiency of the four systems. The objection suit system of the third party not involved in the original trial is conducive to make up for the disadvantage caused by the expansion of res judicata, correct the inherent defects of adversary system and provide procedural safeguards for the third party not involved in the original trial.Chapter Two:The Jurisprudence Foundation of the Objection Suit System of the Third Party not Involved in the Original Trial. First, the paper expounds the principles that are relevant to the objection suit system of the third party not involved in the original trial. Based on the principle of relative expansion of the subjective scope of res judicata, the civil rights and interests of the third party not involved in the original trial are most likely to suffer from the adverse effects of the effective judgment. So it is necessary to set up special relief program for the third parties who are not protected by the program. Examining from the exception of the law principle of stability, if the effective judgment and mediation is wrong, it should be promptly corrected. The objection suit system of the third party not involved in the original trial can not only discovers the truth out of cases but also solves the dispute once and for all. Again, the paper proves the purpose of the objection suit system of the third party not involved in the original trial. Foreign study find the purpose of France is single, only to break through the original judgment. The purpose of Taiwan is to make up for the legal legitimacy of the adverse effects on third parties of final judgment, realize the mechanisms of procedural safeguard and unified dispute settlement, and prevent the judgment of the lawsuit to be revoke or change afterwards. The purpose of Macao is to contain malicious litigation, provide post-procedural safeguards for the third parties. Last, the paper discusses the function of the objection suit system of the third party not involved in the original trial. In detail, the function of the objection suit system of the third party not involved in the original trial is an effective method to make up the potential hazards of adversary system. Not only that, it is helpful to correct the error of the effective judgment and mediation, provide a sound procedural safeguards for the third parties and regulate malicious litigation.Chapter Three:The Foreign Investigation and Inspiration of the Objection Suit System of the Third Party not Involved in the Original Trial. First, the investigation of common law counties find that there is more emphasis on prior procedural safeguards and most of the main proceedings can be fully protect the interests of the program through fair hearing from relatively sound pre-trial pleading, third party litigation and equity pleadings. Due to the procedural protection is not perfect, there is still a need to provide a certain procedural safeguards. So, in common law counties, the two modes of direct defense and incidental defense and the special relief rules for the effective judgment are established. Secondly, the survey of continental law counties and regions find that there are special post relief procedure in France, Taiwan and Macao. Although the name is different, but the essence is the same. Comparatively speaking, there are obvious difference between China's mainland and France, Taiwan of China and Macao of China, such as legislative style, legislative reasons, scope of the plaintiff, sued the precondition, litigation and litigation and prosecution time object. Germany, Japan and Italy did not specify a similar system, but given third parties the opportunity to apply for a retrial. Last, the paper concludes the enlightenment of the legislation of France, Taiwan and Macao from essentials of litigation, scope of case, legal effect, legal procedure and system boundaries.Chapter Four:Understanding and Application of the Objection Suit System of the Third Party not Involved in the Original Trial.First, the paper discusses the difficulties of the filing work of the objection suit system of the third party not involved in the original trial and proposes proper countermeasures and suggestions. Specifically, starting from an instance, the paper analyzes the causes leading to the filing work dilemma of the objection suit system of the third party not involved in the original trial:such as filing mechanism and filing standards fuzzy, the provisions of the Civil Procedure Cause of action lag, the lack of prosecution body identification standards, the scope of litigation object of disagreement and the vague concept of civil rights and interests damaged. And then, the paper proposes that the filing work of the objection suit system of the third party not involved in the original trial should be perfected by completing the following steps:the choice of filing work mechanism, the establishment of filing review principle, the clarity of investigation object, the judgment of remedy is appropriate or not, the definition of the plaintiff is suitable or not and the identification of judgment is effective, revocable and error or not. At the same time, in order to facilitate the need of judicial practice operation, the paper also initiates the idea of how to construct filing review procedure of the objection suit system of the third party not involved in the original trial, for example, the determination of the review mode, the review deadline, the review body, the case number, the charging of litigation costs and other aspects.Secondly, the paper discusses the desirable scope of proper plaintiff of the objection suit system of the third party not involved in the original trial, and thinks it should contain not only the third party with independent claims and the third party without independent claims but the party in necessary co-litigation omitted and the third party whose civil rights and interests damaged by judicial confirmation of mediation agreement.At the same time,the paper studies proper defendant and points out the purpose of treating original litigants as co-defendant is mainly in order to form a complete structure of litigation.On the basis of distinguishing different reasons leading to the error of effective judgment and mediation agreement, the original litigants should be listed as litigant or third party. Thirdly, the paper summarizes the relations between the objection suit system of the third party not involved in the original trial and the third party applications for the retrial system. Fourthly, the paper analyzes the scope of the objection suit system of the third party not involved in the original trial, and thinks it is a mistake to exclude the third party whose civil rights and interests damaged by judicial confirmation of mediation agreement, resulting from persisting in the theory of dual separation application.It is necessary and feasible to entrust third party power to raise objection suit basing on the theory of the the crossing application of procedural jurisprudence.Last, the paper analyzes the trial mode, the form of trial organization, the scope of trial and the mode of judgment of the objection suit.Chapter Five:Matching System of the Objection Suit System of the Third Party not Involved in the Original Trial.First, the paper briefly reports the connotation and significance of privy forever principle and discusses the thought of strengthening privy forever principle. Secondly, the paper narrates the brief survey of the connotation and significance of litigation succeeding and proposes the idea of structuring litigation succeeding system.Thirdly, the paper briefly describes the significance of proceeding notification system by court and discusses the paths.Fourthly, the paper briefly describes the connotation and significance of litigation notification system by litigant and summarizes some advertent issues.Fifthly, the paper introduces the corrections system from the improvement of the payment of litigation costs and the identification of the disciplinary measures about abusing litigious rights.