Study On The Relief Procedures For The Rights Of Third Paity

The third party outside the case refers to the person who does not participate in the original lawsuit due to reasons that cannot be attributed to himself but is infringed by the judgment of the effective court and has independent claim right to the object of action or has legal interest relationship with the result of the effective judgment.The present third party right relief procedure in China includes execution objection,execution objection lawsuit,third party revocation lawsuit and trial supervision procedure.Because the above four kinds of relief procedures are vague and confusing in terms of scope of application,procedure setting and subject of jurisdiction,it is necessary to optimize the allocation of China's third party rights relief procedures.This paper analyzes the procedure and related theoretical problems of the third party's right relief in China.The constitutional theory is based on the theory of litigation right and the theory of private right against public power.The theoretical basis of substantive law is the theory of tort and the theory of unjust enrichment caused by judicial adjudication.After that,this paper makes a comparative study of the relief procedures for the rights of the third party in the civil law system and the countries and regions of the common law system.The common law system emphasizes ex ante relief while the civil law system emphasizes ex post relief.The improvement of the relief procedures for the rights of the third party in China can be referred to the strengths of the two legal systems.This paper divides the existing problems of China's third party rights relief procedures into theoretical problems and practical problems.The theoretical problems include the procedure of the third party's rights relief outside the case "hearing the substantive rights in the way of review","violating the principle of the binding force of judgment","unreasonable setting of execution objection","confusion between the substantive rights relief and procedural rights relief" and so on.In practice,there are some problems,such as the overlapping of the subjects of jurisdiction,the unclear standard of examination,and the unclear rights and obligations of the third party in the remedy procedure.About how to outside the third person right remedy procedure in our country,the article suggested to cancel the execution objection prepositional procedure and the right to apply for a retrial,outside the third party will be outside the third person in the executable program through the act of execution objection within and outside the third people objection lawsuit filed a procedural or substantive objection,outside the execution procedures,through the third person suit for relief.In addition,the ex ante relief procedure for the third party involved in the case should also be paid attention to,including increasing the tendency of the judge's authoritarianism in the case involving the interests of the third party and increasing the third party's participation in the case.