On The Judgment Of The Third Party That Must Participate In The Litigation In Administrative Litigation

The Administrative Litigation Law stipulates the system for the retrial of the parties who missed the original trial,and the Interpretation of the Supreme People's Court on Application of the Administrative Litigation Law of the People's Republic of China restricts "missing parties" to "parties who must participate in the proceedings".In the field of judicial practice,missing third parties account for the largest number of "missing party" rulings and have multiple reasons for determination.With regard to the question of which third party who did not participate in the original trial is the "third party who must participate in the proceedings",its connotation and determination are not clear.There are usually three types of third parties determined by the court that must participate in the proceedings: First,it has an interest in the alleged administrative act,including the relative of the alleged administrative act and the person affected by the alleged administrative act.Second,it has an interest in the outcome of the case,in a narrow sense,the practice mainly includes the parties to civil contracts and the subordinate agencies or organizations that specifically implement administrative actions.Third,it is of great significance for the correct trial of cases,and is divided into two types: the third party with strong implication and help to find out the facts,and the third party with weak implication but helping to find out the facts.These three types imply two kinds of value orientations when the court decides that the third party who must participate in the proceedings.One is that the third party does not participate in the original trial,which affects the fair trial of the case;the other is that the third party does not participate in the original trial,which affects his rights and obligations.With regard to the orientation that affects the fair trial of the case,some rulings indicate that the third party's failure to participate in the original trial simply affects the correct trial of the case,but it does not have an obvious right or obligation relationship with the administrative action or the outcome of the case,and it can still be deemed the third party who must participate in the proceedings.Some rulings indicate that the third party simply affects the correct trial of the case,and his failure to participate in the original trial does not constitute a serious violation of the legal procedure.With regard to the orientation that affects the rights and obligations of third parties,the main differences in judicial practice exist in two aspects.On the one hand,what form of rights does the third party who has not participated in the lawsuit have to be affected to constitute the third party who must participate in the proceedings.Is it as long as the procedural rights are affected or the substantive rights are also affected,does the substantive rights include only the rights and obligations in public law or also include the rights and obligations in private law.On the other hand,how does the judgment result affect the rights and obligations of the third party who has not participated in the lawsuit to constitute the third party who must participate in the proceedings.Should it have an adverse effect or only have a general effect,does the adverse effect include only direct effects or also include indirect effects.In order to prevent the procedure of the retrial system from idling,promote the efficiency of litigation,and protect the legal rights and interests of third parties,Based on the principles and values of the retrial system,only a third party whose rights and obligations will be adversely affected by the outcome of the judgment can become the third party who must participate in the proceedings.Based on the complete protection of the third party's relief rights and the improvement of litigation efficiency,only a third party's rights and interests are directly punished by the judgment result can constitute the third party who must participate in the proceedings.Based on the particularity of administrative litigation,in order to prevent the improper expansion of the scope of trial of administrative litigation,only the third party whose judgment results act on their rights in public law can constitute the third party who must participate in the proceedings in administrative litigation.