The Study On The Improvement Of The Judgment Discharging System By The Third Party

In order to curb the increasing malicious litigation and provide remedy for the third party’s legal rights, the Civil Procedure Law of the People’s Republic of China (2012Admendment) has adopted the judgment discharging system by the third party after drawing extraterritorial legislative experience. However, the system’s remedy function for legal rights has not been fully and effectively performed due to the hast of legislation and insufficiency of theoretical arguments from which the following problems arise:First, the definition of proper plaintiff is flawed; secondly, the nature of litigation procedure is unclear; third, the procedure is lacking in specific application; furthermore, the relationship between this system and other remedy procedures has not been clarified.This paper advises that the judgment discharging system by the third party should focus on the safeguard of third party’s litigious right while maintain the stability of the effective judgment on the basis that it is defined in as a special relief procedure. Following this guiding principle, the author discuss the possible proposals for the improvement of this system combined with the investigation of extraterritorial legislation. In respect to the proper plaintiff, the author suggest that legal relationship between the third party and the judgment should be criterion for proper plaintiff and broaden the scope of the proper plaintiff. As for the specific procedures, the specific and main procedures should be set up including the case filing investigation, speficjudicial procedure, and the effect of the judgment. To cope with the relationship between this system and other remedy procedures, the author advises that this system should be highlighted. Meanwhile, the court should notify the third party and proper sanctions should be added in order to protect the stability of the effective judgment.