Research On Relieving Sham Lawsuit By Retrial Procedure

The sham lawsuit not only infringes the legal rights and interests of the third party,but also seriously damages judicial authority and lawsuit order.In 2012,the Civil Procedure Law added the suit of challenging the judgement by a third party in article 56 paragraph 3,which aimed at providing relief to victims of sham lawsuits.Up to now,the Civil Procedure Law has established four kinds of relief procedures,which can be chosen by the victims of sham lawsuits: the suit of challenging the judgement by a third party,application for retrial of person not involved in the case of execution procedure,execution objection lawsuit by the third party and file a new lawsuit.However,it’s not difficult to find that each procedure has their own defects.For the suit of challenging the judgement by a third party,it has the obstacle of subject qualification and relieve sham lawsuit is only the overflow function of the procedure,but not the ultimate value goal of the procedure.If the victims choose to file a new lawsuit,it’s feasible in theory but infeasible in practice.For the execution objection,relieving sham lawsuit is not the objective of the procedure and the effet of this procedure is very limited.On this basis,we can consider extending the scope of the application for retrial to relieve the victims in sham lawsuit.The advantages are as follows.Firstly,the victims of sham lawsuits can get rid of the shackles of the subject qualification.Secondly,the efficient design of the retrial procedure can effectively reduce the cost of lawsuit and save judicial resources.Finally,the "error correction" function of the retrial procedure can cut off the validity of the former effective judgment documents directly,so as to avoid the damage caused by the continued execution of the former lawsuit judgment documents.At the same time,there are some doubts about using retrial procedure to relieve sham lawsuit.Firstly,since the third party can only apply for a retrial procedure but cannot decide on a retrial procedure,whether the procedure is started or not still depends on the choice of the court,so there is uncertainty in the start of the procedure.Secondly,the retrial procedure can not fully protect the interests of trial grade.Thirdly,the retrial procedure relieves victims by revoking effective judgment documents,which will inevitably impact the stability of effective judgment and shake the settled legal relationship.However,the difficulty in starting the procedure is the due meaning of retrial procedure,so that we can achieve the balance between maintaining the stability of effective judgments and correcting the wrong judgments.Besides,the damages to the interests of the trial grade can be compensated by the ability and the quality of the retrial court.More over,it’s inevitably to impact the stability of effective judgment documents if we want to relieve sham lawsuit.With the "filtering" function in the review stage,the number of cases finally entered the trial stage has been reduced,so the substantial impact on the stability of effective judgments is not as serious as expected.Therefore,the retrial procedure is still the most suitable procedure for the relief of the sham lawsuit.The realization path of the retrial procedure can be constructed from the following aspects.As for the application conditions: Firstly,the applicant must not be the original litigant or the subject with the status equivalent to the litigant;Secondly,the applicant needs to have evidence to prove the civil action brought by the parties in the original trial with fabricated facts;Finally,the effective judgment document formed on the basis of fabricated facts has invaded the legitimate interests of the applicant.As for the limitation of the time for filing,the applicant shall apply for a retrial within six months from the date on which he or she knows or should know the existence of the facts of the sham lawsuit,and shall not apply for a retrial for more than five years from the date when the original judicial document takes legal effect.As for the choice of the court,the applicant’s right about procedural choice should be fully respected.For the case that the applicant clearly states to apply to the original court for retrial,it should not be forced to apply to the higher court for retrial,but multiple appeals and repeated apply should be prohibited.As for the distribution of the burden of proof,the applicant should provide evidences to prove "the two parties of the original trial brought a lawsuit with fabricated facts".At the same time,considering the proof ability and other factors,the court should use the inquisitorial system to help the applicant.As for the standard of proof,it’s not reasonable to apply the standard of "beyond a reasonable doubt" to civil lawsuit.The court should adopted the "preponderance of probability" standard in the review stage,and adopted the "high probability" standard in the trial stage.By setting different standards of proof at different stages,the negative impact of "difficult to initiate retrial procedure" can be cushioned.