| Complaint withdrawal by a third party is quite new in the lawsuit system of civil action in China. Theoretically speaking, it is the most comprehensive and thorough relief procedure that guarantees the rights and interests of a third party. However, since this system has not been established in China for a long time, there are severe problems in legislation and application. Hysteresis and one-sidedness of provisions in various aspects are still relatively obvious. Even now, this has caused the system unable to completely satisfy all the demands required by the judicial practice. We need to proceed with the judicial practice and explore a variety of plight in the system application. Combined with the thinking of legislative system, the third party complaint withdrawal system has to be continually improved while coordinating well with other associated systems. Also, the range and result of this system application have to be kept improving in China.First, this paper analyzes the connotation and necessity of the third party complaint withdrawal system. The definition of the system is clearly indicated and its unique characteristic and its value, which is irreplaceable by other systems, are analyzed in depth, combining with the recentlypublished"Explanation of Civil Procedure Law" by China’s Supreme People’s Court on February 4th,2015. The application status of the system in China is explained from the connecting aspects of application subject, application object, time conditions, specific procedures with retrial and execution disagreement by a person not involved in the case. Then, the understanding and stipulation of the system in France, where the third party complaint withdrawal is originated, are analyzed in detail. The advance legislation achievement of complaint withdrawal in France provides a certain level of reference to improve the complaint withdrawal in China. Then, the paper tightly integrates the court verdicts found by the author in various websites of written judgment. Each case was specifically studied. Specific and typical cases were analyzed to demonstrate the main problems in the application of third party complaint withdrawal in China. They include difficulty in identifying false lawsuit, narrow range of suitable plaintiff and inappropriate connection to execution disagreement. This paper points out if blindly emphasize the third parry’s burden of proof, this will directly cause the difficulty in identifying false lawsuit in complaint withdrawal. This also deviates from the initial intention of introducing this system to China. Thus, it is necessary to balance the burden of proof and to have the court specifically and clearly reviews false lawsuit. Secondly, the range of suitable plaintiff cannot be narrow-mindedly interpreted as the third party with independent claim and the third party without independent claim. Small subject range is the most direct cause to affect the application of third party complaint withdrawal and is also one of the main reasons to reject a third party complaint withdrawal in Chinese judicial practice now. It is clear that "third party" has an extensive interpretation. It does not accord to a personal boundary, but is divided according to interests, which is the key point in expanding the subject range. Finally, the regulation that states cannot propose a third party complaint withdrawal when the third party execution disagreement is rejected has a lack of consideration. It cannot provide an effective protection for the third party’s interests in a complicated judicial practice. The key importance is to coordinate the relation of execution disagreement and third party complaint withdrawal.The paper finishes with four connecting aspects, which are strengthening the principle of honesty and credibility in application, expand the range of suitable plaintiff, improvement of relevant systems and adjustment with execution disagreement, to overall discuss the room for improvement and specific measures of third party complaint withdrawal in China. Particularly speaking, enhance the principle of honesty and credibility in application and introduce this principle to the complaint withdrawal system. The aspects on limiting false lawsuit, establishing a clear and specific penalty system and guiding the judge to review cases have decisive functions. Expanding the range of suitable plaintiff helps to improve third party complaint withdrawal. Eliminating various plights faced by the system in judicial application becomes the most fundamental measure. Improve relevant supporting systems, which include establishing a notification system of judge ex officio. Offer advance protection to a third party’s benefits. Specify the guarantee system that helps to keep the third party’s legitimate interests from a long and unstable state. The penalty system for abusing the withdrawal right prevents the third party complaint withdrawal from being abused. The penalty should not be only limited to fine and detention. When not excluding circumstances with serious consequences, apply criminal penalty. Connect adjustment with execution disagreement. The author suggests using the third party complaint withdrawal after failure of other relief procedures, which means using execution disagreement should be the priority to maintain the nature of effective verdict. However, this does not mean third party complaint withdrawal is not helpful, but is the ultimate measure for protecting the third party’s legitimate interests.Before writing, the author had collected relevant books and document literatures in CNK.I and university library. In addition, the author read a large amount of judicial cases in China Judicative Papers website and official websites of various Supreme and Intermediate People’s Court. Comparative analysis was applied to the contents of third party complaint withdrawal system in France and used it as a reference. Four aspects are summarized as the basic methods in improving the third party complaint withdrawal system in China. It is hoped that the system can show a positive effect while improving. |
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