| In order to protect the legitimate rights and interests of the third party out of the case from the original litigant’s illegal infringement,in 2012 our country established the third party’s rescission action system.Because of the relativity of RES judicata,not many countries set up the system.Since it was introduced into the law,the necessity of establishing the system,the function orientation and whether the existing system can guarantee the smooth realization of its function have been the focus of controversy.In the many disputes of this system,the plaintiff’s qualification is especially outstanding,and there are big problems in the legislative and judicial activities.The subject of qualification is the key to start the procedure,so it is very important to study the qualified plaintiff of the third party’s rescission action.The full text is divided into five parts,the main contents of which are as follows:The first chapter is the legislative interpretation of the scope of qualified plaintiff of the third party’s action of rescission.This paper analyzes the legislative background and legal provisions,and makes a basic summary of the provisions of the third party’s rescission suit qualified plaintiff,so as to deepen the understanding of the system.The second part introduces the current judicial practice for qualified plaintiff provisions.The supreme law has issued the“Minutes of the nine people’s Assembly”and the 27 th batch of guiding cases one after another,breaking through the provisions of the existing legislation on the third party qualified to file a revocation suit,and expanding the subject scope of qualified plaintiffs,make it more practical to operate.The third part introduces the problems existing in the qualified plaintiff of the third party’s action of revocation.It mainly includes four parts: first,the legislative style is not set up properly,it is difficult to play its function of non-routine litigation procedure.2.The strict conditions stipulated by the legislation limit the qualification of the subject and exclude a large number of outsiders,which makes the system difficult to play its due role.At present,the definition of judicial cognizance is different from that of qualified plaintiff.Four,because the subject scope is not clear causes this system to abuse and the false lawsuit frequent question.The fourth part,from the perspective of comparative law,analyzes and studies the relevant legal system of France and Chinese Taiwan region in order to provide new ideas for China’s legislation.The fifth part proposes the pertinence consummation opinion according to the realistic question.Taking the aim of system establishment and judicial practice as the starting point,and combining with the relevant regulations in the mature areas of the system,this paper puts forward some suggestions on how to improve the system at the legislative level,re-establish the system to play its non-conventional relief procedures system functions.Make clear the connotation of“The third party” outside the case,relax the limitation of the scope of qualified plaintiff.We will strengthen the regulatory mechanism for the abuse of the right of action. |
