On Third Party Without Independent Claim

The legal system of China , third parties are divided into two categories: with and without independent claim. In practice, third party without independent claim is the usual case; actually, this kind of third parties are far more common than thrid parties with independent claim. Due to faults in legislation and utilitarianism in judicial practice, the application of this system still has some significant discrepancies from jurisprudence and legal principles and is not fully capable of protecting the rights of third parties without independent claim. Many scholars think that the present system of third parties without independent claim, owing to its frustration of the fundamental legal pursuance of justice, must be transformed completely. In fact, many studies of third party without independent claim are based on this systems factual operation in our judicature, which approach, totally denying the reasonableness of present rules in a unpragmatic way, is not persuasive either. In particular, some students, after surveying relevant systems in foreign law, put forward an argument that the framework of present third party without independent claim should be abandoned and the distinction of third parties be firstly according to the requirements of remedying third party's rights and realizing justice, which this article nevertheless disagrees. Apart from procedural justice, third party without independent claim system should also reflect the requirements of procedural convenience. As a judge in a lower court, the author of this article makes here an attempt to understand the present third party without independent claim of our country in a right way.This article is divided into three parts, respectively stating the definition of third party without independent claim, the survey of relevant foreign systems and the criticism of present system. The first part opens an introduction, including the definition, characteristics, theoretical and practical bases and realistic operation of our third party without independent claim.The second party makes a survey on relevant foreign systems, including civil law, common law and former USSR/Russian systems, so as to find out a new approach to reconstruct the present domestic system. The third part tries to positively reflect on the present domestic system, including pointing out the real shortcomings of present designs and making corresponding analyses to find a way to reconstruct rules concerning, for instance, procedure joining, procedural status, rights and duties and liability burden of third parties without independent claim, in the hope that the reform of the present system can thereby be benefited a bit.