Study On The Third Party Cancellation Lawsuit Brought By The Creditor

With the "Civil Procedure Law of the People's Republic of China"(hereinafter referred to as "Civil Procedure Law")and the Supreme People's Court's judicial interpretation of the "Civil Procedure Law"(hereinafter referred to as "Judicial Interpretation of Civil Procedure Law"),the third person to cancel suit is constantly improve and refine in terms of legislation,but as a new system,the applicable time is relatively short,about a third person to cancel the lawsuit main body the eligibility of controversy in theory and practice has been going on.Whether the creditor can bring a third party to cancel the lawsuit is also quite controversial.In practice,the violation of the interests of creditors has occurred from time to time.In order to fully protect the interests of creditors and better play the role of the third party to revoke the lawsuit,this paper studies the related issues of the plaintiffs that the creditors revoked as a third party,and proposed some The method of solving the problem is solved in the hope that the system will be further improved,so that the practice of the system is more standardized and smooth.This article first embarks from the domestic research,combing scholars Wu Ze yong,Liu Jun bo,Yang Wei guo,resolutiion,wei y drop the suit of the third person related arguments,combing the system at present in China,Taiwan and the setting up of a third person as early as the discontinuance of the operation situation of France,and based on the reality in our country,analyzed the current our country under the background of big mediation center,constant attention and use of the court mediation has counterproposal outside creditors legitimate rights and interests of the parties to use the lawsuit abuse is very convenient,but did not establish the res judicata system in our country,has also increased counterproposal civil creditor's rights,the infringement of creditor's right after the incident,Provide no other effective relief for the rights of the creditor,the creditor's application for retrial court generally do not accept,shall be separately charged and encounter obstacles of effective judicial documents to the court or the people's procuratorate Study on the third party cancellation lawsuit brought by the creditor appeal success rate is not high,only in case into execution in the implementation stage can be suitable for execution objection system,so it is necessary to initiate the third person to dismiss the suit to creditors of the plaintiff qualification.In addition,the creditor,as the plaintiff of the third party's cancellation action,also has its theoretical basis.From the perspective of legislative purpose,the purpose of establishing the third party's cancellation action in China is mainly to cancel the wrong judgment documents between other parties through litigation,so as to safeguard the procedural rights of the third party and the rights and interests of civil entities.At the same time,the third party revocation litigation system in France and Taiwan also provides us with some useful experience.Then,according to the present several viewpoints on the suitability of the creditor as the third party to cancel the lawsuit,this paper divides the creditor into priority creditor and ordinary creditor.Priority creditor is the creditor that should be specially protected according to the law,and ordinary creditor is the creditor that should be specially protected according to the law.At present,most scholars believe that senior creditors enjoy the third revocation of the litigation of the plaintiff qualification of ordinary creditors cannot serve as the plaintiff filed cancellation suit by a third party,through to the creditors initiate a third person to dismiss the suit specific judicial case analysis,whether it is a preferred creditor or general creditors,they are the third person discontinuance of the eligibility of the plaintiff,can bring a third person to withdraw prosecution shall protect their legitimate rights and interests,because the main body of the third person discontinuance eligibility questions is not only the law,or facts,we should be based on the entity legal relationship,and not just in accordance with the procedural law on the logical relationship to the problem.Finally,in order to make the system standard and smooth operation,the related supporting mechanism is studied,namely,the establishment of litigation notification system,the establishment of the longest prosecution period,the establishment of the procedure to start the guarantee system and the abuse of punishment mechanism.