The Discussion On Chinese System Of The Third Party Without Independent Right Of Claim

The system of third party without independent right of claim is an important one in civil action, which is the legal system of litigation for protecting the economy of litigation, eliminating the conflict of judgement and protecting the interests of the third party outside case. The current litigation of china gives over-simple regulation about the system of third party and the circle of theory has some un-settled problems, so a great deal of problems appears in the practice of judicature, especially in terms of third party without independent right of claim.Proceeding from our national conditions and combining with the research on legal system of third party in countries or area with developed procedural law, this dissertation try to compose a harmonious and high-effective system of third party without independent right of claim againThe system of third party of litigation has a long-term developmental process: in ancient society with poor productivity, the once communication between two subjects constitutes the basic pattern of civil communication at time since the domain of civil communication is too narrow. With the development of productivity, domain and pattern of civil communication had been broadened and renovated, therefore, the system of third party of litigation emerge as the times require for pursuing efficiency of litigation, economizing resource of litigation. The system of third party of litigation originated in ancient Rome, but it wasn't established there. Modern German law founded the system of litigation with main attendance, namely, the third party puts forward request or opinion based on the whole or a part of litigation between others, and files a lawsuit with court of first instance taking accuser and defendant in this case as joint defendant in order that the judgment of these two case don't conflict. In modern times, the system of third party is in common use of code of civil law in many countries, which is called as join-litigation system abroad. Although Anglo-American law system doesn't possess the developed join-litigation system and clear classification, every country emphasizes the relationship between third party and the case.The compendium of civil action of the Soviet Union and its constituent republics also brings the third party into the system of litigation but for showing the fact of case.Chinese system of third party is born out of Soviet Russian statute book about civil action, but Chinese legislator overemphasizes the efficiency value of law, pursuing economy of litigation and ignoring protecting party's authority of handing.Civil Procedure Law of the People's Republic of China, Suggestions on Some Issues Concerning Civil Procedure Law of the People's Republic of China by the Supreme People's Court, Some regulations Concerning strictly carrying out Civil Procedure Law of the People's Republic of China in judgment of economic case by the Supreme People's Court and other laws as well as judicial interpretation nail down the following issues in terms of the concept of third party without independent right of claim: firstly, the concept of third party without independent right of claim; secondly, nailing down the base of taking part in litigation by third party without independent right of claim; thirdly, nailing down the litigation status of third party without independent right of claim; fourthly, the manner by which third party without independent right of claim takes part in litigation. From the point of view of judicial practice, bringing the third party without independent right of claim into litigation usually requires third party to shoulder responsibility.Through the description of the framework of Chinese system of third party without independent right of claim, we know that Chinese regulation has the following deficiency about this: firstly, judgment without appeal violates the basic principle of civil action m; secondly, criterion of joining appeal is dark; thirdly, it is unreasonable for court adds to third party without independent right of claim according to their authority; fourthly, the status of third party without independent right of claim isn't clear; fifthly, the overbalance of right and obligation of third party without independent right of claim; sixth, deviating from value pursuance of economy of litigation and judicial fairness.By introducing the regulation about system of third party in United States, Germany, Japan, France and Taiwan of china, we get the following conclusions. Firstly, differences between two large system of law, we know that the structure of system of third party in two large system of law are different; traditional continental law system (Germany, Japan, France and Taiwan of china) divide third party into main participating, assistant participating (second participating), and informing-participate and special independent party in Japan, etc. Anglo-American law system divides the system of third party into third-party defendant, participating with authority and participating with permission. The difference in term of division in two systems is the difference between the two systems of litigation. Second one is the enlightenment for china. Although there are a lot of differences in terms of connotation and extension of classification of the third party in the countries and districts mentioned above, they all divide into two situations of volunteered and participating by force and classify them; therefore, classifying the third party without independent right of claim basing on foreign successful experience is the ultimate method for settling the illness of Chinese system of third party without independent right of claim.Combining with Chinese current situation, we should establish the tenet and instructing idea of system of third party without independent right of claim as following: firstly, proceeding from the actual situation; secondly, benefiting from foreign mature experience of legislation; thirdly, considering the value orientation of proceeding; fourthly, considering the principle of process.Composing system of third party without independent right of claim again:Firstly: the classification of third party without independent right of claim. Chinese code of civil law and traditional textbook never mention this classification, and third party without independent right of claim can be classified as introduced third-party defendant and assistant third-party in terms of if possessing the characteristic of party.Secondly: Composing the manner of participating in litigation adopted by third party without independent right of claim. First one is about the manners of participating in litigation adopted by third-party defendant. Defendant (or countercharge defendant) can take action against someone who should shoulder responsibility required by defendant (or countercharge defendant) in the character of third-party accuser and make him become the third-party defendant with an independent appeal. Second one is about the manners of participating in litigation adopted by assistant third-party defendant, for instance, applying, note of litigation and note of judgment. Application by him is the major one of assistant third-party's manners of participating in litigation, and note of litigation from party and note of litigation and note of judgment from court are supplement. Meanwhile, two common types in practice including party applying court's addition and court informing according to authority should be canceled.Thirdly: the litigation status, right and obligation of third party without independent right of claim. The first one is litigation status, right and obligation of third-party defendant; the litigation status of third-party defendant includes two sides as following, who assists accuser of third-party litigation to institute proceedings when court hears bother between both parties of former case and also the real party when court hears legal relation between accuser of third party litigation and him for ensuring that third-party defendant if is the final holder of civil responsibility. Third-party defendant is the defendant of the third-party litigation as well as the real party, so he possesses all litigation right and obligation as a defendant in a common civil action, who is judge by court directly to bear civil responsibly. Second one is about the litigation status, right and obligation of assistant third party, who doesn't possess the status of party but independent position of proceeding, his litigation shouldn't be restricted by the litigation of main party. Moreover, assistant third party isn't a type of party, who enters litigation by the manners of application and note about litigation, so court can't judge him to bear civil responsibly. However, the judgment should possess binding force except three conditions as following, assistant third party can't utilize attacking or defending manners because of the limitation of proceeding; assistant third party can't utilize attacking or defending manners because of the behavior of main party; main party doesn't utilize attacking or defending manners because of his intention or serious mistake.