The Study On The Withdrawal By The Third Party

With the rapid development of social economy,social relations are more and more complex and cases in judicial practice are also diverse.The situations that the parties abuse their rights to file false and malicious litigation for their own self-interests are common in judicial practice.In order to prevent the parties damaging the third party's legitimate rights and interests through colluding with each other and fabricating the case facts to transfer assets and evade the debt,our newly built 2012 civil procedural law of the People's Republic of China(hereinafter referred to as the civil procedural law)sets rules for the withdrawal by the third party and gives the third party whose legitimate rights were damaged by the original judgment right of action to safeguard their own legitimate rights and interests.However,because of its simple rules and difficultpractical operations,the system has suffered from academic controversy since it was regulated.In 2015,the supreme people's court's interpretation of the civil procedural law of the People's Republic of China(hereinafter referred to as the interpretation of the civil procedural law)come on and has carried on the elaborations of the withdrawal by the third party's prosecution condition,the procedure of applying and examining,the objects withdrawn and the modes of judgment and so on.But the withdrawal by the third party in our country still has many problems in the judicial practice.This article analyzed the withdrawal by the third party's problems in our country's judicial practice,introduced the imperfections of the system and then put forward a series of views to the problems combining with the cases in our country's judicial practice in order to provide applicable suggestions to perfect the system.First,the part began with the withdrawal by the third party's definition,discussed the necessity of the system in the civil procedural law in our country and introduced a general situation of the system's judicial application in our country combining with the withdrawal by the third party's trial of cases.Second,the second part analyzed the problems of the withdrawal by the third party that has still had in our country recently combining with the cases in the judicial practice in our country,which included problems such as the court's scale of file and examination,the scope of eligible plaintiff of the withdrawal by the third,scope of trials,the objects withdrawn,the modes of judgment and avoidance and so on.Then,the third part put forward some proposals to perfect the withdrawal by the third combining with the problems above and the relevant regulations in France and Taiwan based on the judicial practice in our country.It included the setting style of the withdrawal by the third,the scope of eligible plaintiff,the procedure and scale of file and examination,uniforming the court's standards of the examination on applicable conditions,clearing the court's scope of trials,refining the provisions of the objects withdrawn,adding a mediation way of settlement,clearing the provisions of avoidance,regulating litigation fee standards of the withdrawal by the third cases,coordinating conflicts of interests between the third party in the withdrawal by the third and the parties in the original suit and formulating the relevant punishment mechanisms in order to prevent the system of the withdrawal by the third being abused.Last,the last part introduced the coordination issues between the withdrawal by the third and the third party's applying for retrial,the execution objection system and the lawsuit of the enforcement's assignment scheme beginning with the legislative original idea of the systems above.