Trying To Discuss Reconstructing The System Of The Third Party Without Independent Right Of Claims In China

The system of third party without independent right of claims is imported from Soviet Union, which is similar to the auxiliary intervention system of civil law and the impleader system of common law.Intervention system is built to realize economical litigation principle, to prevent the contradictions between two related judgments, and to protect the interest of the party and the third party.In the existing legislation and judicial practice of China, there is something wrong with the system of the third party without independent right of claims. It does harm to litigation justice and efficiency.The article based on the problems of legislation and judicial practice of the system of third party without independent right of claims, combined with foreign legislation, theory and practice, discuss how to reconstruct the system of third party without independent right of claims in China.The article is divided into three parts except the introduction and concluding remarks.First part: this part introduces the legislation, practice, and the theoretical research. Firstly, I introduce the current legislation and the judicial interpretation on the system of third party without independent right of claims. Then I introduce the abnormal phenomenon, such as missing the right person to intervene the litigation or letting the wrong person to intervene. These abnormal phenomena lead to wrong judgment and dispute of jurisdiction. From all above, I summarize the problems existing in the system of the third party without independent right of claims. Finally, I introduce the doctrine on this system of China briefly.Second part: The legislation, theory and practice of the main countries of two legal systems of the third party system. In this part, I introduce the related system of USA, Japan, France, Germany, then analyzed them briefly. The conclusion is: Although the systems on the third party of common and civil laws are different, they abide by the common law, ie under the premise of ensuring justice, we should design the system to make the litigation economic and prevent contradictory judgment when the two interrelated cases are trialed in different proceedings, in order to balance the sub- stantive rights and litigation rights of all parties. After analysis and comparison, we point out the reasonable theory and system that can be used to construct our system.Third part: The reconstruction of the system of third party without independent right of claims in China. In this part, I discuss the value of the system of third party without independent right of claims, and then propose we should use the theory of action as our analysis tool, obey the litigation principle when we reconstruct the system. Then, I reference the doctrine of quasi-independent third party to reconstruct the system of the third party without independent right of claims. I discuss the intervention criteria, intervention method, litigation status, adjudication effect. If the judge can predict that the party will use the fact or right determined by the judgment or mediation to confront the third party according to the suit information and experience, we hold that the third party has interest in law. We think it is the intervention criteria. According to the criteria, we divide the third party without independent right of claims into two parts: qusi-independent third party and auxiliary third party. They intervene the litigation in different ways .Qusi-independent third party has the status of party and it is constrained by the right judgment .But auxiliary third party do not have the status of party and it is constrained by the fact judgment. I think we should construct objection system of subject qualification to give procedure choice to the party and the third party. In addition, we should construct the system of adjudication of effect of the third party without independent right of claims.