Abstract
The third-party revocation action is a new system established in the Civil Procedure Law of the People's Republic of China of 2012. Although the academic community is quite controversial, it is undeniable that due to the increasing use of the judicial system to infringe on the rights and interests of others. For example, infringement of the lawful rights and interests of the parties or third parties through false litigation, malicious litigation, imposing litigation, etc., the third-party revocation action as a system that can effectively protect the legitimate rights and interests of third parties outside the case has great practical significance in China. Therefore, how to better understand and apply the third-party revocation system has become a problem that must be paid attention to by the current theoretical and practical circles. On the basis of introducing the system of revocation of the third party in China, the article discusses the existing problems such as the scope of the parties, the litigation procedure and the application of similar procedures.The article proposes that the third party with independent claim and the third party without independent claim should be brought into the scope of the third-party revocation action’s subject. As for the choice of the procedure, the procedure of first instance should be applied to the trial of the third-party revocation action. When a lawsuit and an application for retrial by an outsider can be applied simultaneously, the litigant can only be allowed to choose one procedure. If the litigant simultaneously initiates a lawsuit for cancellation by a third party and the outsider applies for retrial, the third-party revocation action shall be applied preferentially.
Highlights
The third-party revocation action is a new system established in the Civil Procedure Law of the People's Republic of China of 2012
According to the third paragraph of Article 56 of the Civil Procedure Law of the People's Republic of China, the subject of the third-party revocation actions shall be a third party with an independent claim and a third party without an independent claim .In addition, the third party shall meet the following three conditions and provide the evidentiary materials: (1)The third party fails to participate in an action for any reason that cannot be attributable to the third party's fault.(2)the legally effective judgment, ruling or consent judgment is entirely or partially erroneous
Accroding to the Article 295 of the Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China, “failure to participate in an action for any reason that is not attributable to the third party's fault” means the circumstances under which a third party is not listed as a party to an effectivejudgment, ruling or consent judgment, andis not at fault or not obviously at fault, including: (1) The third party fails to participate in the action because he or it does not know the action
Summary
The Supreme People's court holds the view of the trial,“The plaintiff's statute of a subject of the revocation action is limited to the third party stipulated in the first paragraph and the second paragraph of Article 56 of the Civil Procedure Law, and the outsider who has evidence to prove that the original case has a false lawsuit and damages its interests. Though the original intention of the establishment of the third party to revoke the lawsuit in France is to prevent the false claims from infringing the civil rights of the third party outside the case, but with the development of judicial practice and theoretical research In-depth, the French third-party revocation has already broken through its original traditional boundaries, and the subject and scope of litigation has continued to expand. It is suggested that China should expand the subject of the revocation of the third party in the legislation, and the third party who has the independent claim right and the third party who has no independent claim right, other offenders who have an interest in the original judgment
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