Study On The Subject Qualification Of The Plaintiff Of The Third Party Revocation Action

When China amended the civil procedure law in 2012,it added paragraph 3 to article 56,thus formally establishing China's third party cancellation litigation system in law.Therefore,it provides a remedy for the situation that the third party outside the case does not participate in the proceeding because of the reasons that can be attributed to him,thus damaging his legitimate rights and interests or affecting the realization of his rights.Because the civil procedure law of 2012 is too principled and general for the revocation of a third party's lawsuit,the supreme people's court promulgated the "interpretation on the application of the" civil procedure law of the People's Republic of China "on February 4,2015 to elaborate the interpretation of this system.Nevertheless,the suitability of the plaintiff in the third party revocation action in this interpretation still encounters many difficulties in practical operation,such as the subject qualification of the plaintiff in the third party revocation action initiated by ordinary creditors to be discussed in this paper.Due to the limitation of the scope of the legal suitability of the plaintiff to initiate the third party revocation action is limited to the third party with independent claim right and the third party without independent claim right,the interests of ordinary creditors as the third party outside the case are difficult to be relieved,which affects the original intention of legislation when the system is established.The purpose of this paper is to explore whether ordinary creditors can be the subject of the third party revocation litigation and how to improve the procedural guarantee of the third party revocation litigation in China.This paper is divided into four parts:The first part is the origin of the problem.Firstly,through a brief statement of the qualified subject of the third party's revocation action,this paper proposes whether the ordinary creditor is included in article 56,paragraph 3 of the civil procedure law.Secondly,the creditors have the right of revocation in substantive law,but there is no corresponding right to remedy in procedural law,which leads to the problems existing in the connection of the right protection mechanism of ordinary creditors.Finally through to the ordinary creditor involved in the situation such as false action of the present condition of judicial interpretation,and then to judicial cases of ordinary creditors can initiate a cancellation proceeding again carries on the analysis,which is for creditors shall enjoy the right of revocation,when experience false litigation,if the cancellation right litigation is difficult or unable to remedy to realize creditor's rights,whether can after a filed cancellation suit by a third party,which leads to below.The second part is the analysis of the general creditor's right relief predicament.As it is difficult to identify the false lawsuit,there are many restrictions on the exercise of the revocation right lawsuit,and the reasons for the previous lawsuit between the debtor and the third party are insufficient and objectively difficult to realize,this paper proposes that the current creditor's right guarantee relief mechanism has a relief "vacuum" state,in order to lay the foundation for the following.The third part is the theoretical analysis of the subject qualification of the third party revocation action.First to give the paper expounds the necessity of subject qualification,to analyze its rationality as the next,and finally,the feasibility analysis through three aspects: one is to the third party's handling of the case without independent right of claim with the results of the "interested" in the eyes of the law to be defined,thus to expand the scope of the "third person",so that under the condition of without changing the existing legislation applies to ordinary creditors;Second,the application of the circumstances to be strictly limited to prevent the abuse of their rights;Third,the author makes a comparative analysis of the third party's right guarantee mechanism in China's legislation and concludes that the system of third party's revocation is the best remedy to solve this problem.The fourth part is to endow the third party with the procedure perfection of the subject qualification of the ordinary creditor.In order to protect the rights and interests of ordinary creditors,it is necessary to endow them with the qualification of the subject of the plaintiff in legislation,define the types of litigation for the ordinary creditors to initiate the third party cancellation,allow the limited increase of litigation claims,establish the corresponding punishment mechanism,and improve the connection with the safeguard procedures of other third parties.