On Realistic Difficulties&Procedural Design Of The Applying For The Third Party Revoking Process

The third party revoking process is a new thing that brings from France andTaiwan District to prevent the fraud litigation which infringes rights and interests ofthe third party. Because many subjects are involved in the market economy and lackof good faith, there is a necessity of establishing the third party revoking process.However the regulations are too general and abstract and res judicata system is notperfect in our country that lead to the problems and disagreements in application ofthe third party revoking process. The nature, the function, the subjects, the objects andthe relationship between the related systems are not very clearly defined, so it is notideal for the application of the third party revoking process in the courts of ourcountry.The third party revoking process is a new proceeding not a re-trying sue whichshould be carried out in accordance with the procedure of trial court. The rightdirection is to explain the parties expansively to provide relief for the person notinvolved in the case as long as he meets certain conditions, he should also bepermitted to apply. Most of the court decisions are not included in the applicablescope but legal documents with the execution effect should be able to apply therevoking process. Overall we should broaden the entry to take the aufklarungsrechtstandards as long as the surface evidence makes a preliminary judgment in accordancewith the statutory conditions, there is no need for using too strict censorship. Meanwhile, to prevent misuse of revocation, it is necessary to make punishmentmeasures and strengthen the construction of good faith principle to protect theinterests of the third party to the greatest degree as well as reduce the impact on theaffective judgment made by the court to keep the stability of the proceeding. With theproblem of the coordination between the third party revoking process and re-tryingsuit, each has its own scope of application but also inevitably there will be cross. Onlyto clarify the relationship and divide scope of application between the two can weprotect the rights of the third party comprehensively.Through the analysis of existing law about the protection of right of the third partyand current applicable situation, given by the foreign relative laws, I try to find out thereason that causes the gap of the regulations and reality and think about thedisadvantages and legislation improvement. I make procedural design of the thirdparty revoking process for reference.The paper includes six parts of it:The introduction is about the background, writing methods and writing purpose ofchoosing the third party revoking process as the theme.The first chapter states the current legislation of the third party revoking processand focus on comparing Chinese and foreign legislation, finally to get theimplications to our country.The second chapter introduces the state of the application and concentrates onresearch of subjects and objects of the third party revoking process.The third chapter makes the procedural design of the court proceedings, proofstandard, examination of appeal, the jurisdiction, costs and regulation of abuse.The fourth chapter analyzes and distinguishs the third party revoking system,malicious litigation, execution objection system and re-trying lawsuit above.The final part gives a conclusion of the whole.