The Research Of Discharging The Judgment By The Party Not Involved In The Original Trial

The amended Civil Procedural Law has officially established the Revocation by the Third Party,which makes China become the fourth countries or districts setting up such lawsuit system after France,Taiwan and the Macao Special Administrative Region and fills the gap of lacking a third-party-oriented relieving procedure.However,like happening in other examples,the establishment of the revocation system has triggered a significant controversy in both theory and practice concerning its necessity to setting up,nature and function,models as well as the concrete procedure.It is extremely important to clarify these disputes.Basing on the connotation and denotation of such a lawsuit system and on ways of comparatively studying,normatively and systematically analyzing and the empirically researching,my thesis therefore makes a definition of the Revocation of Third Party as following:although the third party did not participate in a already-started or already-finished procedure for reasons cannot be attributable to him/her,the results of litigation or non-litigation procedure such as a judgment,an order or a settlement may do harm to or be likely to do harm to the third party and they have no other relief methods.Under such circumstance,they are allowed to file a lawsuit annulling or changing the adverse effects of former effective legal documents.The Revocation of the Third Party is such an afterwards relief procedure trying to solve a dispute in a time.It is a pseudo-proposition to study the nature of the Revocation of the Third Party of our country from the perspective of action of formation because such a way neither conform to the theoretical basis nor the Chinese practice.Considering from the nature of procedure,the Revocation of the Third Party is actually a special and multiple relief system whose aim is to enable the third party get back to the former procedure solving the dispute in one time on the basis of withdrawing the disadvantaged effects confirmed by the former judge or order,which,notably,isn’t a new separate object of action.The object of the third party action is still the unsettled substantive civil legal relationship or the substantive civil rights between the third and the parties in the former lawsuit.This special procedure is designed to protect the rights of the third party,to realize the due procedure and thus to solve the dispute at one time.Ultimately,it can keep balance among the certainty of effective judgment,the stability of legal relation and the protection of the third party’s substantial and procedural rights.In such a way,it highlights the independent value of the revocation procedure which includes fairness and efficiency.What’s the source of the litigation rights?Why do we need such a new procedure?And why can we file such a lawsuit?In order to answer these questions,my thesis develop on the theoretical basis of constitution,procedural law and substantive law,as well as the practical situation of China which refers to the spreading of fraudulent litigation,deficiency of legal system and depletion of res judicata.By comparing,we can find out the reason why this procedure only exists in some countries/districts.The purpose of my thesis is to build a Chinese-style revocation procedure systematically.First,the proper plaintiff.We can boldly assume that only the one who haven’t been evolved in the former procedure can file a revocation lawsuit.If someone has participated in the former procedure,he/she can only apply for a retrial.The third party can never file a retrial in or after the executive procedure.And the third party with the independent rights of claims can only file a revocation lawsuit rather than a new one.For matching,systems like authoritatively informing,litigation notice and forbidding of the abuse of litigious rights should be set up immediately.And at the same time,make sure the situation that the parties colluded to harm the interests of others should be treated as a special sort of tort;and the third party has the substantive rights and thus can ask the court to withdraw the former judgment or order.The new-designed third party system should make it clear that the third party with the independent right of claims can participate in the third party revocation lawsuits due to two kinds of situations,including protecting the rights and preventing the fraud.And the third party without the independent right of claims should also be classified into two kinds:the expectant third party and the auxiliary third party.The expectant third party has all the procedural rights like the plaintiff and the defendant do.Second,the legitimacy elements.Those include the prerequisites of prosecution,of procedure,of substantive.And talking from the composing elements of a proceeding,the legitimacy elements refer to the proper parties,interest of litigation,object of action,claims,jurisdiction,acceptance,trail,judgment,relief approach and matching systems.Only making a deep research from the above elements,can we change the "law in paper"into "law in practice".Last,the public power.Taking the wrong verdict on the transfer of land-use right as example,my thesis is trying to show the limited function the public power like the Court and the Procuratorate have exhibit in protecting the third party’s rights by starting the retrial procedure.Thus,my thesis is trying to establish a major system that the public power can participate in the proceeding as a third party before the revocation lawsuit or just file a revocation lawsuit and opposition to the execution.This system,of course,is assisted by the retrial proceeding filed by the Court and the Procuratorate.