An Empirical Research Of The Third Party Opposition Proceeding

In practice some parties may fiction or fabricate the facts of a case by malicious collusion to obtain the court’s effective judgment which is a legal form to evade repayment of debts and transfers assets. But the activity would harm the interests of the third party. In order to curb the spreading trend, the legislators responded positively in the new revision of Civil Procedural Law. They added the suit of the third party opposition proceeding in the third paragraph of article 56. But we still need to discuss further that how to understand and apply this regulation because it is not precise and the legislative mode is too special.This dissertation has discussed the qualified Plaintiff of the suit of the third party discharging the judgment from the point of literal interpretation, systematical interpretation,teleological interpretation and comparative interpretation.In addition to third party with independent claim and third party without independent claim,the general creditor should be include.But the forgotten necessary joint participant and the company in shareholder’s representative action should be excluded.The process of legal application on this kind of suit should adopt the common first trail procedure.It is more reasonable to define the nature of this kind of suit as mixed suit.take this as the basic point,we can apply mediation and reconciliation in the trail.In addition,this dissertation attempts to untangle the relationship between the suit of the third party discharging the judgment and the application for retrial and the submission of objection by the person not involved in the case.Moreover,we should equip relevant institution to assist poor and immature third party discharging the judgment.In this paper, firstly, we analyze the cause of situation around the status of the third party opposition proceeding. Secondly, this paper discusses about the subject, the object, the procedure and other aspects of the third party opposition proceeding in detail according to current situation of practice operation, and finally puts forward his own opinion. This article is divided into three parts, we will describe in detail the content of the each part respectively.The first part combs and summarizes the current situation of the third party opposition proceeding, which includes seven aspects:the case number and the cause of action is not unified, the standard of legal costs is not unified, high the trial of appeal, the program is not unified, lack of punishment mechanism of hostile lawsuits, and happens mainly in the property cases, but rarely on the judgment appeal.The second part analyzes the cause of the current situation of the third party opposition proceeding, which includes six aspects:legislative defects,legislative hard,difficult of prosecution, dilemma of the subject and imperfect object scope, the unclear mentioned procedure and valid provisions, the confused relationship of related system and the lack of supporting system.For the cause of the second part, combining with the experience of extraterritorial legislation, the existing research results of the theories and the new The supreme people’s court about applicable < the civil procedure law of the People’s Republic of China >judicial interpretation, the third part puts forward some solutions from eight aspects:the unification of the case number, the cause of action and the standard of legal costs,the clarity of the subject, the perfection of the object scope, distinction of the filed application the legal effect, the boundary with related system and supporting system.