Third Party Without Independent Claim: Foundation, Comparison And Demonstration

In view of the popular concept that the major aims of the Third Party without Independent Claim System is procedural economy and procedural guarantee, the article starts with the discussion on the system's aims, putting forward that the participation of the third party doesn't inevitably leads to economy while procedural guarantee is the inevitable requirement of any concrete civil procedural system. Such a diversified theory has no effect in revealing the essence of the System. We should set "avoiding the contradictive judgment" as the aim, so as to provide a correct guidance for system reformation. On this foundation, through introduction on context and operation mechanism, the article has a investigation on the Third Party Practice system existed in the Federal Civil Procedure Rules, and gives a conclude that as the great difference in related systems, fundamental theories, idea of lawsuit, the Third Party Practice couldn't be our choice. Then, the article has a detailed introduction on the Associating Participation System in Continental Legal countries. First, we prove the existence of the right-based third party, then put forward the construction of dualistic participation model: for obligation-based third party, using the mutual influence criteria; for right-based third party, using the right direction criteria. Considering the confusion on the necessity and probability, the article has a discussion on the system's important theoretical basis—Participation Effect, revealing its producing background and its difference from Res Judicata, asserting that the assisted party should also be restricted by the participation effect in right-based litigation, this conclude expands the subject scope of the participation effect .The article also has an expounding and response to the argument in foreign counties.Aiming to the combination of procedural and actual law, the article hopes to test and improve its theory through analysis on practical example. At the last part, we let the theories have an experiment on Subrogation Action which was provided in , we have a investigation on the procedural status of the creditor and debtor, asserting that debtor can participate the procedure as a third party without independent claim. In the circumstance that several creditors exist, we should establish associating participation in joint action system.In overall structure, the 1st chapter of this article emphasizes discussion on theories, so as to establish direction for the following context; the 2nd and 3rd chapter launches argumentation on the basis of comparison, meanwhile putting forward author's viewpoint; the 4th chapter deepen theoretical basis, forming the system construction; the last but not least chapter gives an analysis on practical examples, and improve system connotation.