Study On The Legal Issues Of The Action Of Revocation By The Third Party

As the settlement documents of a case,the judgment,the written order and the conciliation statement,in principle,only have legal effect on the litigant and do not bind the third party outside the case.In China’s judicial practice,it has become a trend for the effective legal documents to have legal effect on the outsiders in order to solve the disputes thoroughly.Especially in recent years,with the improvement of people’s legal awareness,the situation of malicious collusion and fraud lawsuit is forbidden repeatedly,and the infringement of legitimate rights and interests of outsiders by effective legal documents is increasingly serious.Outside our country as the case to a third person legitimate rights and interests are better protected,so everyone has to take effect between the violation judgment or written order or the conciliation statement,in 2012,modify the civil procedure law in our country,for the protection of rights and interests of a third person,and added a third in the chapter revocation of the suit for the case outside the third people against wrong judgments or written orders and conciliation statements given rights.In 2015,the Interpretation of the Supreme People’s Court on the Application of the Civil Procedure Law of the People’s Republic of China stipulated the procedural and substantive requirements of the action of retracted by a third party.However,as the establishment of the system is relatively short time,is not perfect,both in theory and practice,there are some problems,so that the establishment of the system is not fully expected to achieve.This article wants to comb through the study of the theory of the system,grasp its connotation,in France and Chinese Taiwan for reference to the system of legislation and practice experience,summarized its status in the judicial practice and differentiate its and other relief way,the problems existing in the analysis of the system,put forward the improvement of the corresponding suggestion,in order to a third person suit to better play to its system value.This paper has four parts,each part is:The first part is an overview,based on the basic theory of the system,and reference to China’s Taiwan region and France on the system of the relevant research results,brief introduction of the concept of the system,analysis of its nature and characteristics,to carry out a more comprehensive introduction,for in-depth study of the system to do a good job.At the same time,it clarifies the relevant provisions of China’s laws on the system,and presents and summarizes the judicial status quo of the system in China.The second part analyzes the problems existing in the theory and practice of the eligible plaintiff of the third party retracted action and puts forward the corresponding solutions.The main reason is that there is no uniform and clear standard for the qualified plaintiff of the third party revocation action,which is ambiguous and controversial in both theory and practice.Based on the analysis of the establishment purpose of the third party action system and the concept of litigation law,this paper puts forward that the eligible plaintiff of the third party action should include the creditor who is harmed by litigation fraud and the necessary co-litigant who is omitted in the pre-trial,besides the third party as stipulated in Article 56 of the Civil Procedure Law.The third part analyzes the third person to dismiss the lawsuit withdraw problems of object,based on the civil adjudication process generally is a litigation activity of procedural matters,almost nothing to do with the real rights of the parties,won’t make the final disposition on the rights and obligations of the parties,and for involving the entity right who ruled that because of the rights and obligations are court made temporary processing,It cannot confirm the relationship between rights and obligations,so it is not necessary to be the object of revocation action by the third party.Although the arbitral award is not made by the court,it can be applied to the court for compulsory execution,which has legal force and may affect a third party other than the object of arbitration.There may be false and malicious application in the arbitration award which damages the legitimate rights and interests of the third party.Therefore,the arbitration award should also be the object of the revocation action of the third party.The fourth part mainly analyzes the application choice of the system,points out the cross competition and cooperation problems in the judicial practice of the three relief procedures by comparing them with the execution objection of the outsiders and the application for retrial by the outsiders,and puts forward some suggestions on the coordination and application.In the process of execution of a case,when the specially applicable relief mechanism in the execution stage cannot play its due effectiveness,the t limited application of the third party’s retracted action is allowed.As for the application of the third party revocation and the retrial by outsiders,we should first pay attention to the definition of the identity of the parties and the distinction of the contents of the claims,and then we should distinguish the application under different circumstances,and do not repeat them here.