Selection Mechanism For The Procedures Of Relief To Third Party

In order to regulate false lawsuit, nonparty’s motion for new trial and third party opposition procedure have been enacted successively to protect right of third party, via judicial interpretation and legislation. However, these two procedures do not work well. The new judicial interpretation seems to provide a new idea, saying only one of these two procedures can be used to relief third party. But it does not solve the problems in practice. To achieve the purpose of relief to third party, the boundaries between the two procedures should be clarified and application rules should be explicit. In this case, it is necessary to make a comparative analysis of these two procedures to clarify the boundaries between them. Besides, we need to establish selection mechanism for the procedures from the perspective of procedural rules and to complete relative systems. In addition to the introduction and conclusion, the full text contains four parts as follows:The first chapter analyzes the concurrence between nonparty’s motion for new trial and third party opposition procedure, which has caused chaos in application. Although judicial interpretation provided a clear principle that these two procedures cannot be used simultaneously, there is no further explanation of the specific applicable rules. Therefore it is not enough to solve the problems in the application of the third party relief procedures.The second chapter is the empirical analysis of the third party relief procedures. Compare the characteristics and differences of the third party opposition procedure and nonparty’s motion for new trial in application by analyzing typical cases. The subject of third party opposition procedure is too narrow, however it cannot be ruled out by raising another action. There are limitations in the case of the application for nonparty’s motion for new trial, but it also plays an important role in regulating the false lawsuit in certain circumstances. Application scope of the two procedures is not clear and lack of uniform standards. Through comparison of the two procedures, it can be found that nonparty’s motion for new trial is not perfect as a long-term way for relief to third party because of its own limitations. Since the third party opposition procedure is brand new, it can be consummated by interpretation.The third chapter establishes the selection mechanism from the perspective of procedural rules. Based on the characteristics and differences of third party opposition procedure and nonparty’s motion for new trial, two principles should be followed when choosing procedure for relief. First is to focus on the existing system to find out a reasonable explanation. The second is to abstract theory from problems in practice. The specific idea is to reduce the use of nonparty’s motion for new trial and to interpret rules to make the range of relief wider for third party opposition procedure. When the third party claims obligatory right, it should be relieved by third party opposition procedure. When the third party claims of real right, whom could be identified as indispensable party, it should be relieved by nonparty’s motion for new trial. The third party can select one of these two ways of relief when there is concurrence between the two procedures.The fourth chapter constructs third party afterwards relief system from the perspective of procedural rights and the restriction of judicial power. Nonparty’s motion for new trial subject to the restrictions of adjudication supervision, so it cannot be explained randomly and can be used in a lesser extent. Thus it is necessary to establish standards for third party opposition procedure, which makes it more operational. First of all, this part analyses the elements in the provision of third party opposition procedure to identify the standards. And then establish the examination procedure in a certain order.