Research And Reconstruction On The System Of The Intervener Without Independent Claim

It has been widely agreed by civil procedural legislation in many countries that the system of the third party becomes a modern litigation system that changes the traditional litigation structure a lot. But there is still much controversy about the intervener system, theoretically and practically. Considering the illegibility in the relevant laws, and the conflict & confusion in the judicial practice, some intrinsic research on this system has been done in this study.First of all, the background and history of intervener system were summarized, and its legal value including justice and efficiency was analyzed. The detailed analysis was been made on the affirming standard of the intervener based on the current domestic law by clarifying some basic conceptions in both fields of substantial law and procedural law: such as object of action, relation of interests. In addition, the negative influence of intervener system in current judicial practice was enumerated.Secondly, by introducing and reviewing the relative systems existing in America, Japan, France, Germany, and comparing the background of China into which this system can be transplanted with foreign systems, it was believed that we should do some system-rebuilding based on the model of Japan and Germany. And it was advocated that there were two keys for recognizing the intervener system accurately: litigation status and classification of the intervener.Therefore some research has done on the litigation status and classification of the intervener mentioned hereinabove, which are also the two main basic theories of solving the problem. After simple introduction of some main academic opinions on these two issues, it was concluded that the intervener should be defined as an assistant participator in the lawsuit which had the nature of independence and dependence at the same time, and the third defendant and the quasi-third party must be excluded from the group of intervener.Based on the above discussion, the rebuilding model of this system, which was composed of the effect and way of intervening, and the procedural right in a basic theory frame, was proposed in conclusion. Starting with the theory of "the effect of attendance", the renewed intervener was divided into two types: intervener of right and intervener of duty .And then the different procedure settings of these two types, including the way of intervening and the procedural right were reconsidered. Finally, three procedure guarantee systems were introduced in order to perfect the system of intervener.