On The Efficacy Of Effective Judgement On The Third Party Without Independent Claim Right

In the judicial practice of our country,the third party who has no independent claim right can be held liable in the lawsuit of others,and thus be bound by the res judicata,which is in accordance with the provisions of the law,but there is a problem that the due process basis for the occurrence of res judicata is insufficient in jurisprudence.When the third party with no independent claim right has actually participated in the litigation process between others,but has not yet been held liable for one party,the practical opinion holds that the facts confirmed by the pre-judgement which the third party has participated shall have a pre-determination effect on him or her in the subsequent proceedings in which the third party present as a plaintiff or defendant.In the case of the third party has not actually participated in the lawsuit between others,there is a disagreement in the court as to whether the third person,as a party,is bound by predetermination effect confirmed by the effective re-judgment in the latter lawsuit which is associated with the pre-suit: some insist on the relativity of the validity of the judgment,and believe that the third party should not be adversely bound by the outcome of the proceedings between others in the latter complaint;Some consider the suspensive effect to be a statutory proof of validity,whether or not the third person actually participated in the pre-appeal,and the facts confirmed by the pre-action decision in force can bind the third person in the post-litigation.The practices in practice raised the question of how the balance between the settlement of the related dispute and the third party`s due process protection can be realized in the case of the third party without independent claim right assuming responsibility,and the question of whether the third party,who is not liable in the sentence,should be bound by the pre-determination effect of the pre-appeal judgement in the post-application against him or her.By examining the relevant theory of the effectiveness of the auxiliary participation of the civil law system to the auxiliary participants and the theory of the subjective scope of the judgment effect of the Anglo-American law system,this paper holds that the scope of the validity of a judgment should be based on the principle of Due process,The binding of a particular party to the validity of an effective judgment shall be based on the due process guarantee of the party,and the intensity of the validity of the judgment shall be commensurate with the degree of procedural protection;the confirmation of a certain fact to be bound by the validity of the judgment shall also be premised on a substantive hearing of that fact.Otherwise,it is considered that the binding force of the fact on a certain party may lead to litigation raids because it cannot reasonably be expected.The defect of the third party without independent claim right system in our country and the unclear nature and scope of application of the pre-determination effect provision are the main causes of the problems in practice,so on the basis of examining the relevant theories in China and combining the enlightenment of the extraterritorial experience,this paper puts forward the following thoughts: First,the third party without independent claim right should not be held liable in the lawsuit of others,and the party can be judged in the condition that he or she is given an independent party status.Second,the subjective scope of the pre-determination effect should extend to the third party who is protected by due process of this complaint,and in principle not extend to the third party who has not actually participated in the lawsuit proceeding.Apart from this,the third party without independent claim right who has not participated in the pre-litigation should be allowed to use the pre-determined facts as a defense,but as a principle,be prohibited to use it as an attack mean in the latter proceedings.Pre-determination effect is not of an occlusion effectiveness,which means the third party who is subject to the pre-determination effect may disprove the reversal of such pre-determination effect.