The Construction Of The Suit Of The Third Party Discharging The Judgment In China

In the practice of civil procedure of different countries, there are often violations of the rights of a third party, while the parties seldom recognize it which makes those phenomena even more common. Each country, therefore, sets up systems, such as separate suit of the third party, retrial applied by the third party and the suit of the third party discharging the judgment, to protect them. And the combination of those systems has achieved significant results. The rules on the protection of the rights of the third party are mainly embodied in the participation of the third party in the litigation, the objection filed by the third person in the judicial enforcement, the system of the retrial applied by the third party and the suit of the newly added third party discharging the judgment in China. When revising the Civil Procedure Law in2012, Paragraph3of Article56was added, establishing the system of the suit of the third party discharging the judgment. This rule provides relief for the victims who cannot participate the litigation for reasons that cannot attribute to themselves before the judicial enforcement. This paper starts with the elaboration of the generation and theoretic basis of the system of the suit of the third party discharging the judgment, trying to dissect the problem on proper plaintiff in the practice of this system by way of compare, and puts forward the methods and approaches to overcome it. Except for the preface and the conclusion, this paper can be divided into four chapters.Chapter One starts with the generation and the theoretic basis of the system of the suit of the third party discharging the judgment and then clears the procedure of the generation and the institutionalization of that system in China and dissects the theoretic basis of the generation of the system.Chapter Two introduces the rules of the system of the suit of the third party discharging the judgment of France, Taiwan and the mainland of China and analyzes their differences to illustrate the advantages of the systems of the former two that can be taken of. Chapter Three is the center of this paper, which mainly dissects the controversies and disadvantages of China in the academia and practical circle, beginning from cases and combining theory with practice, and analyzes them briefly.Based on the deficiency of the proper plaintiff in the system of the suit of the third party discharging the judgment, the last chapter puts forward the relevant suggestions, starting with the establishment of system and judicial practice. In the legislative level, the suggestions include legislation and procedure, while the judicial level mainly emphasizes the way to decide whether the third party without independent right of claim is a proper plaintiff in practice.