On The Procedural Guarantee Of The Third Party Who Assigns The Matter In Dispute In The Litigation Department

The transfer of the subject matter in litigation is the embodiment of the developed modern trading system.In order to reduce the abnormal interference of litigation procedures on economic activities,the legislation of all countries allows the parties to transfer the subject matter in litigation freely.According to the economic relationship,the transferor of the subject matter is no longer the subject of the civil legal relationship in dispute and shall no longer participate in the litigation as a party.However,if the assignor of the subject matter quits the lawsuit and the assignee rejoins the lawsuit,whether the assignee should all recognize the litigation act performed by the assignor,and whether the court should resume the litigation procedure.The emergence of these problems is clearly in conflict with the modern goals of civil litigation.The modern goal of civil litigation is to promote the one-time settlement of disputes,provide procedural security for the parties and maintain the stability of procedures.Based on the purpose of the litigation,both Germany and Chinese Taiwan stipulate that after the litigation belongs to the subject matter,the principle of constancy of parties shall be adopted.The litigants shall not withdraw from the litigation,and in general,the assignee shall be bound by the effect of the judgment.This legislative mode is conducive to the one-time settlement of disputes and the realization of litigation economy and maintenance of the stability of procedures.The problem is that the assignee,who is not a party to the lawsuit,is bound by the effect of the judgment and violates the procedural guarantee.Based on this kind of problem on the legislative model,the Japanese followed by the German method at the same time,combining with local practice,adopt the successors of socialism,in principle by the assignee to participate in litigation subject matter,assignor exit,the legislative model of material adequate protection,the parties at the same time,restricting the receiving party litigation rights,namely the third person shall inherit adopted by the assignor in litigation,in order to maintain process stability and economy of litigation.With the revision of the laws of various countries,the determination of the qualification of the parties and the effectiveness of the judgment tend to be the same in the case of the transfer of the dispute.First of all,the transfer of the subject matter does not result in the loss of eligibility of the litigant.Second,with the consent of the parties,the third party may inherit the lawsuit.Finally,the three parties are subject to the effect of the judgment.The focus of legal research should be shifted to the third party procedural guarantee under the situation of the convergence of the parties' constant mode and the litigation inheritance mode.Depending on the specific connotation of procedural safeguard right,the third party is endowed with corresponding rights.The first part of this paper describes the necessity of procedural safeguard.When the dispute is transferred in the litigation,the judgment effect is therefore extended to the third party,regardless of whether or not the third party participates in the litigation and in what way.The purpose of this legislation is an inevitable requirement for the one-time settlement of disputes.On the other hand,the legitimacy of the effectiveness of the judgment is based on the parties to obtain a considerable degree of procedural protection,exhausted all attack defense.Only when the third party is guaranteed by the corresponding procedure can the judgment be extended to it.The second part designs the third party program subject right.First of all,the scope of the system is clear.Then,the relationship between the third party and the transferor is due to litigation.The third party shall be the substantive party,and the transfer shall be a formal party.In accordance with the connotation of legal norms,the formal parties have the right to implement the litigation,therefore,as the subject of litigation to implement the action of course to the third party.The third part and the fourth part are the third party program participation right.It is divided into pre-procedural safeguard and post-procedural safeguard.In the prior procedural safeguard,a third party shall be allowed to inherit the lawsuit with the consent of both parties.Under the principle of constancy of parties,if the court knows the transfer of the subject matter in dispute,it shall notify the third party,who shall choose whether or not to participate in the lawsuit.Ex post procedure safeguard is divided into procedure application stage and procedure trial stage.The third party's right to apply for the procedure does not necessarily lead to the trial stage.The trial stage should be based on the substantive legal relationship.The litigation between the third party and the transferor is not the wrong reason for the judgment.