| As the systems used to resolve the civil disputes,civil litigation and arbitration are orientated towards justice.But with civil litigation fraud and arbitration fraud gradurally increasing in judicial practice in recent years,the civil litigation and arbitration show alienation,the reason for which is that legislation lags far behind judicial practice.As an example to civil litgation,if the civil litgation fraud involving the conspiracy against the interests of the third party not involved in the trial is exposed before the judgement comes into force,the third party not involved the original trial can resort to the third party system in Chinese civil procedure;otherwise,the third party system in Chinese civil procedure is helpless.In the latter case,both parties use the sword of the justice to generate inequity.This not only violates the legal interest of the third party not involved in the trial,but also seriously damages the judicial authority of the court and challenges the object to maintain justice for the civil legal system.In fact,the court's separation from social life and empirical judge is an objective finity the civil litigation and arbitration face.The combination of the finity mentioned above and the excessive respect of the subject of the parties under the party's subject stressded mode is the basic reason why the civil litigation and arbitration show alienation.Because of the absence of the procedure of complaint to cancel the judgement by the third party not involved in the original trial,once the judgement comes into force,the third party above can only resort to the civil complaint,the procedure of opposition to the execution,the re-trial procedure or applying for cancellation of arbitration award.But from perspective of the judicial practice at present,these systems are unable to provide effective relief for the third party not involved in the original trial.So the author holds that the solution to the problem is construction of the procedure of complaint to cancel the judgement by the third party not involved the original trial.The accurate grasp of the connotation and the correct understanding of the specific characteristics of the procedure of complaint to cancel the judgement by the third party not involved in the original trial is the starting point for the construction of the procedure above.As a part of civil procedure,it can impede the civil litigation fraud,so as to function to protect the interests of the third party not involved in the original trial. Complaint to cancel the judgement by the third party not involved in the original trial usually occours after the judgement became effective,so it belongs to one kind of afterward legal relief system.Because of the absence of procedure security,the right of complaint is attributed to the legal-interest-related party,who has not been involved in the course of trial not for the reason attributed to himself or themselves.The lawsuit type is compositive,which is charactrized by both action based on civil procedure law for modification and action based on civil substantive law for modification or action based on civil substantive law for payment;Complaint to cancel the judgement is·mainly based on stipulations of the substantive law;As to the discernment criterion of the object of the civil litigation,the substantive law theory should be adopted. Specifically speaking,we can discern the object of the civil litigation according to the substantive legal relations and substantive rights the third party not involved in the original trial claims.Obviously,complaint to cancel the judgement by the third party not involved in the original trial is similar to the third party system and the procedure of opposition to execution in name,but in fact it is diffirent from them in many respects.Construction of the procedure of complaint to cancel the judgement by the third party not involved in the original trial not only has the urgent realistic need,but also has the deep basis of legal principle theory.From legal principle theory of the constitution angle,general prohibition of self-help is a basic priciple in modern state,and security of the subject of the nation is the basic spirit of the constitutional government,so the modern state should undertake the supply duty of the procedure of disputes solution.Obviously,construction of the procedure of complaint to cancel judgement by the third party not involved in the original trial will not only strengthen the function of the disputes solution for the civil litigation and arbitration systems,and provide the legal relief channel for the third party not involved in the original trial whose interests were violated,but also accord to the theory of full respect of the subject of the nation in procedure.From legal principle theory of the civil procedure angle,although the mode of stressed-subject of the party enormously respect the subject of the parties,its intrinsic flaw also easily brings the risk that both parties intentionally conceal the facts and conspire against the third party not involved in the trial.In addition,even if the judge has the enthusiasm for maintaining justice,but because of the court's separation from the social life and the finiteness of humanity's reason,he can't pierce all of the parties' conspiracy against the third party not involved in the trial.So in order to rectify the inequity brought by civil litigation fraud and arbitration fraud,it is necessary to endow the third party not involved in the original trial with the right of complaint to cancel the judgement.Comparison precedes reference.The observation from the comparative law angle to the legislative style and concrete stipulations of the procedure in the civil procedure of France,Taiwan of China and Macao of China is the precondition for the construction of the procedure of complaint to cancel the judgement by the third party not involved in the original trial.Regarding the legislative style,the civil procedure law of France as well as Macao Special Administrative Region of China have adopted a dual legislative pattern.On the contrary,"the civil procedure law" of Taiwan of China has adopted a unitary legislative pattern.The author holds that the procedure of complaint to cancel the judgement by the third party not involved in the original trial and the retrial procedure are two kinds of systems of different functions,which have different logics respectively.So Chinese civil procedure law should stipulate the procedure of complaint to cancel the judgement by the third party not involved in the original trial,which is fully independent of the re-trial procedure.With regard to the concrete stipulations of the procedure,the procedure of complaint to cancel the judgement by the third party not involved in the original trial in French civil procedure law is the completest from perspective of comparative law.Therefore,with reference to the civil procedure law of Macao Special Administrative Region and Taiwan area of China,we can follow the French example to construct the procedure of complaint to cancel the judgement by the third party not involved in the original trial.The civil litigation and arbitration have many common things not only in operation but also in mechanism of fraud arising,but its connotation in three legislative examples is relatively narrow.So the applicable scope is extended from civil litigation to arbitration in this paper.In short,the procedure of complaint to cancel the judgement by the third party not involved in the original trial can not only rectify defects of civil litigation and arbitration systems,but also enhance the procedure function of disputes solution.So we should construct the procedure of complaint to cancel the judgement by the third party not involved in the original trial as soon as possible,so as to practice the concept that"where there is a right,there is a remedy",guarantee the subject of the nation and improve the system of the interests protection of the third party not involved in the original trial. |
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