Research On The System Of The Withdraw Of The Third Person Other Than Involved In The Case

In china, the latest Civil Procedure Law provides for the Third-Party Litigation Institution and the Institution of Outsider's Objection in the course of execution. Application procedures vary between the two, the former applies to the ongoing proceedings, the latter is applicable to the process of enforcement procedure. Undoubtedly, the provisions above alleviate the conflict of interest between the Third Person Other Than Involved in the Case and the parties to certain extent, safeguard the legitimate interest of the outsider. However, in practice, it also appears such a situation: the Third Person Other Than Involved in the Case become aware that the interest of his has been harmed, but he can't resort to the court for judicial remedies before the execution procedure is activated. This is clearly not conducive to protect the interest of the Third Person Other Than Involved in the Case. In addition, the lack of the provisions about the Withdraw of the Third Person Other Than Involved in the Case makes the protection to the Third Person Other Than Involved in the Case imperfect. Based on requests of the reality and the theory above, the author suggests that our country should establish the Withdraw of the Third Person Other Than Involved in the Case as soon as possible.This paper begins from analyzing the research status of the Withdraw of the Third Person Other Than Involved in the Case in china, and then defines the conception of it, combining with such provisions in foreign and Taiwan of china. Moreover, on the basis of analyzing the procedure of the system, the paper makes clear the necessity of improving the relevant supporting system, and has a try to construct and improve our Withdraw of the Third Person Other Than Involved in the Case in theory. Besides introduction and conclusion, the total text is divided into five parts, twenty thousands word.The first part focuses on the research status of the Withdraw of the Third Person Other Than Involved in the Case. The author analyzes the system from three aspects: the legislative status, the status in practice and theoretical studies. In Legislation, the Civil Procedure Law provides that the Third-Party Litigation Institution and the Institution of Outsider's Objection could be the legal foundation for constructing the Withdraw of the Third Person Other Than Involved in the Case. Plus, recent judicial interpretation of Supreme Court, namely Article V of"interpretation of several issues on the application of Procedure for Trial Supervision in'The People's Republic of China Civil Procedural Law'", should be the legal foundation for the system. The situation that the interest of outsider is violated mainly embodied in the form of litigation fraud in judicial practice. In my opinion, there are mainly two types below: debt-avoiding type and type of seizing target in the proceedings. In theory, China's scholars have carried out fruitful discussion. They not only investigate the system construction of the Withdraw of the Third Person Other Than Involved in the Case abroad, analyze the legal basis and practical significance of building this system in China, but also discuss the system from different vision. Therefore, I conclude that China is provided with legal basis and practical soil of constructing the Withdraw of the Third Person Other Than Involved in the Case, also theoretical basis.The second part mainly focuses on the theoretical analysis of the Withdraw of the Third Person Other Than Involved in the Case. The section points out the problem that the Article V above is facing, and analyzes the characteristics of the Withdraw of the Third Person Other Than Involved in the Case after arranging the conception of the suit abroad. In addition, the section analyzes the relation and difference between the system and the Third-Party Litigation Institution, the Institution of Outsider's Objection.The third part focuses on analyzing the necessity and feasibility of constructing the Withdraw of the Third Person Other Than Involved in the Case. The author believes that the lawsuit not only has its right of appeal, but also has its practical basis. To build and improve the system is conducive to procedural justice, and improve the legal system which our country protect the legitimate right of the outsider. What's more, it can relieve the harm that the expansion of civil judgments'effectiveness damages the benefits of the outsider.Part IV and Part V mainly analyze the procedural requirements of constructing and improving of the Withdraw of the Third Person Other Than Involved in the Case and point out that we should improve the system from following aspects: the scope of application, the way of suit, object, jurisdiction, trial, and so on. Besides, the construction and improvement of the system still need three supporting systems: the inform system of Court, the right to punish malicious litigation, as well as pre-guarantee system.