Research On Third Party Without Independent Claim System In China

1. Third Party without Independent Claim System is a very important system in Chinese civil procedure. Because of the limitation of the original legislation's theory and technology, resulting in the right and obligation of the third party without independent claim being an unbalance status in various main subject of Chinese civil procedure, which is not suitable for the development trend of"adversarial system"as the emphasis in civil procedure. Therefore we need reform and perfect.2. The third party system was originated from Rome Law, then developed and improved in German and formed the continental law mode with the representative by German and Japan that is similar as the Third Party without Independent Claim System in our nation which called"assisting party system". Although USA, as the representative of system of Anglo-American law hasn't formed systematical the third party system, which also legislated"the third party defendant"system. The reason that the form of above different system is the different law tradition and way of thinking of this two law system.3. Third Party without Independent Claim System in China inherited the third party theory of Russia, putting emphasis on bureaucratic legalism, ignoring the right and protection of civil procedure subject. On account of the weakness of the theory and legislation principle tendency, the expression of the third party without independent claim system is too simple and unclear with many pretermissions, which the situation of the abuse of the third party without independent claim infringing upon the third party happens in practice.4. The way of how to solve the existing problems of the third party without independent claim system is that we should introduce into"assisting party system"of continental law, integrating with our nation condition with proper improvement, by endowing with the procedure choice right for the third party without independent claim to protect legal right, which also reach the legislation goal of the third party system that is to gain the procedure economy and reduce the contradiction judgment. Given the condition of the law tradition and operation, it's not the time we can introduce into"the third party defendant"system or similar one, otherwise the defection of current the third party without independent claim system will generate, or the procedure will become so complicated, which doesn't benefit the efficiency and the build-up of justice authority.