On August 31, 2012, the 28th meeting of the 11th National People's Congress Standing Committee voted on the decision to amend the Civil Procedure Law. Some new litigation systems have been added to the revision of the Civil Procedure Law, and the third party’s revocation is the new one. Although there is controversy in the revision of the establishment of the system in the revision, the research and discussion system of the system to make it operate reasonably is a problem that must be paid attention to in the theoretical and practical circles. This paper attempts to reveal the institutional structure of the third-party revocation complaint through the following analysis, and advances the theoretical problems in the application of the third-party revocation complaint, in order to promote the theoretical and practical circles to explore this system in more depth.
A third party who has the right to claim and has no independent claim, but has not participated in the lawsuit because of the inability to blame himself, but there is evidence that the judgment, ruling, or part of the mediation of the legal effect is wrong, and damages its civil rights The person may, within six months from the date of knowing or ought to know that his civil rights have been damaged, file a lawsuit in the people's court that made the judgment, ruling or mediation. If the people's court hears the case and the lawsuit is filed, it shall change or revoke the original judgment, ruling or mediation; if the lawsuit is not established, the lawsuit shall be rejected. "This provision means that a new litigation procedure and system has been established in China's Civil Procedure Law - the third person revoked the complaint. In a nutshell, the so-called third-party revocation complaint refers to the third party outside the case. Applying to revoke the wrong judgments, rulings and mediations that have already taken effect between others to safeguard their civil rights system. The establishment of this system is a major move in the revision of this Civil Procedure Law.
In the sense of pursuing substantive justice, the purpose of the legislator to add a third person to revoke the lawsuit is to protect the civil rights of the third party outside the case by revoking the wrong judgment, ruling, and mediation book between others. The premise of the revocation of the lawsuit is that the wrong judgment, ruling and mediation document that have already taken effect between others infringe on the interests of the third party outside the case. It is for this reason that it is necessary to revoke the judgments, rulings and mediations that have already taken effect between others. At the same time, in the sense of pursuing procedural justice, the reason why third parties outside the case can revoke the judgments, rulings and mediations that have already taken effect between others is also based on the procedural rights to maintain third parties, with the purpose of procedural guarantee. . The third party to revoke the lawsuit system in China requires that the party who sue the third party to revoke the lawsuit must be a third party who has not participated in the lawsuit because of the inability to blame himself. Since the third party did not participate in the lawsuit in the original judgment, ruling or mediation lawsuit, the procedural rights were not guaranteed. If the third party outside the case participated in the lawsuit between others, the third party could In the lawsuit, by exercising the corresponding litigation rights to protect their civil rights, the third party should be given the opportunity and right to procedurally provide ex post guarantee.
In China, the addition of this system has its practical need, that is, people hate the more common phenomenon of using judicial procedures to infringe on the legitimate rights and interests of others. For example, through false litigation, [1] malicious litigation, [U impersonation litigation, [3] the legitimate rights and interests of the third party. In this regard, in terms of legal response, in addition to improving the evidence system, it can effectively protect the legitimate rights and interests of third parties. Some scholars' proposals for amendments to the Civil Procedure Law also point out the necessity of the third party to revoke the judgment system. It is also helpful to set up the system to prevent malicious collusion between the two parties and damage the so-called false lawsuits through the lawsuit. Refers to the formal litigation of both parties to the entity through the fictional physical disputes that do not exist (including the existence of no substantive legal relationship between the two parties and the existence of substantive legal relations, but there are no disputes), the intention is to use the court The judgment of the lawsuit reached a lawsuit that harmed the rights or rights of a third party outside the lawsuit.
[2] Malicious litigation refers to the party’s infringement of the right to sue to bring a civil action by fabricating facts or reasons to achieve damage to the interests of the other party.
[3] An impersonation lawsuit means that the prosecutor is not a party to a civil dispute, but file a lawsuit against the other party in the name of one of the parties to the dispute in order to obtain benefits from it.
[4] Article 112 of the revised Civil Procedure Law of 2012 stipulates that if the parties collude in malicious way and attempt to infringe on the lawful rights and interests of others through litigation or mediation, the people's court shall reject the request and impose a fine and detention according to the seriousness of the case. ;Constitute a crime, be held criminally responsible.
Three people right. 5) From the perspective of these proposals, it is obviously affected by the “third-party revocation of litigation” system in the “New Civil Procedure Law” in Taiwan. The "third-party revocation lawsuit" system in the "New Civil Procedure Law" in Taiwan of China originated from the French tiferceopposition system, that is, the third party revoked the judgment objection system. 7) It is logically possible to revoke the erroneous effective judgment, ruling, and mediation form formed in the litigation between others through the revocation of the third party's lawsuit, and to realize the relief of the third party's civil rights and interests. However, some scholars have pointed out that the relief of third-party rights can be achieved through the retrial procedure, without the need to establish an independent third-party revocation system. The main problem with the current lack of relief procedures is that the retrial procedure in the current Civil Procedure Law is not open to third parties. Therefore, it is only necessary to amend the Civil Procedure Law to allow a third person to act as the subject of retrial, and the third party’s rights will be Can be achieved. 8) In the judicial interpretation of the retrial of the Supreme People's Court in 2008, retrial relief was also opened to third parties outside the case. 9] In Taiwan, there are also scholars who have mentioned this point in the dissent of the third party’s revocation of the judgment system. 10] The question here is whether the reinstatement system is used to achieve the relief of third-party rights, or is it alone. Establish a system for revoking third parties. The author believes that if you consider the particularity of a third party's revocation (such as subject restrictions, referee effectiveness, etc.), it is not impossible to set up or stipulate a separate third party's revocation. In essence, the third party's revocation is still attributed to the special remedy, and should be in the scope of retrial. The third party's revocation is essentially the opening of the subject of retrial to the third party.
The question of the necessity of a true resignation of a third party is a question of the relationship between the principle of relativity of the effectiveness of the referee and the protection of the rights of third parties. The so-called principle of relativity of judgments means that the effectiveness of judgments between others is only valid in principle for the parties to the lawsuit, and cannot be restricted to third parties other than the parties. Three people are binding. 11) The principle of relativity of judgment is to protect the third party outside the case [5] Jiang Wei editor: "Civil Codex experts to amend the proposed draft and legislative reasons", Law Press, 2008 edition, page 319. [6] in China The fifth section of the Civil Procedure Law of the Bay Area stipulates that the “third party revocation proceedings” provides the basics for the third party to revoke the judgment system in the first article of the series (Article 507 of the Civil Procedure Law). The content is conceptually used by the “third party to revoke the lawsuit.” Chinese Hewan scholars also generally use the expression “third party to revoke the lawsuit”. The author believes that the more accurate statement should be "the third party requests to revoke the judgment lawsuit" can be referred to as "the third person revoked the judgment lawsuit". Therefore, in this article, both France and the similar system in the Hewan area of ​​China are also called The “third party withdraws the judgment system” as a lawsuit and procedure, expressed as “third party revocation judgment lawsuit” “third party revocation judgment lawsuit” “third party revocation judgment procedure”
[7] Some scholars translated it as “a third person filed a disqualification objection” or a third party objection. See Jean Vinson, Sergio Kinshaal: The French Civil Procedure Law, Luo Jiezhen, China Legal Publishing House, 2001, pp. 1281, 1282; French New Civil Procedure Code, Luo Jiezhen, China Legal Publishing House, 1999 , Page 117 [9] Article 5 of the Interpretation of the Supreme People's Court on the Application of the Judicial Supervision Procedure of the Civil Procedure Law of the People's Republic of China, Article 5: The outsider's claim on the subject matter of the original judgment, ruling, and mediation If it is unable to bring a new lawsuit to resolve the dispute, it may make the original judgment, ruling, or within three months after the judgment, ruling, or mediation document has been legally effective, or within three months from the time when it is known or should have known that the interest has been damaged. The people's court at the higher level of the mediation book applies for retrial.
[0] See Chen Rongzong, Lin Qingmiao: Civil Procedure Law, Sanmin Book Company Co., Ltd., 2005 edition, p. 808. [1] See (曰) Ito Shin: Judgment on the effectiveness of the third person "Load (曰) Inoue The Code of Justice, Sasaki Shingo, Ito Shin: The New Civil Procedure Law, Japanese Review Society, 1984 edition, p. 295. Because of the principle of relative validity of judgments, judgments between others are not binding on other third parties. Even if another person erroneously confirms that the property of the third party outside the case belongs to another person through the judgment, it does not prevent the right holder from defending his property through litigation. Only when the third person outside the case is bound by the judgment of others, the effectiveness of the judgment is When the three people expand, it may lead to the inability to defend their legal rights through the original lawsuit. However, the effectiveness of the third party’s revocation will be greatly reduced and will be limited to the expansion of the judgment between others. .
The question is whether there is a system of judging power in civil litigation in China. Judging from the provisions of the Civil Procedure Law, China has not clearly defined the judgment of the judgment as the civil law countries such as Germany, Japan, and South Korea. Although from the end of the 1990s, the views do not seem to be familiar and recognized, and the concept of resilience is used only in a few occasions. Indirectly reflecting the effectiveness of the judgment is the provision of the Civil Procedure Law on "no matter what is going on", that is, in cases where the judgment or ruling has already taken effect, and the party has also filed a lawsuit, the plaintiff has been informed of the grievance, but the ruling of the people's court allowed the withdrawal of the lawsuit. except. As a system, including the subjective scope, objective scope and time scope of the res judicata, the operation of the system also requires a lot of systems and concepts, [such as the subject of litigation. If you do not grasp the concept of litigation, you can not apply the system of judging. The objective scope of the judgment is directly related to the subject matter of the litigation. [5] Of course, a specific civil litigation system does not necessarily have to be clearly defined by law, and the system can also be confirmed by jurisprudence. Even if it is not a case law country, jurisprudence can be a judicial practice, and this is not the case in our country’s judiciary. These judicial practices and jurisprudence often require the corresponding civil litigation theory as a support. For example, regarding the distribution of the burden of proof or the burden of proof, there is no clear law in the civil law countries, but rely on the general theory of the burden of proof or the distribution of burden of proof. However, in China, since the judgment disclosure has not been institutionalized and extensive, it is impossible to form an effective jurisprudence guidance mechanism, and the civil litigation theory has no guiding and supporting role. From this level, it can be argued that China basically has no system of judging power, and if it exists, it only exists in textbooks and theories. Thus, it seems that it can be said that China lacks a mechanism for maintaining the civil rights of third parties through the system of judging power.
In this sense, the third party’s revocation is necessary to maintain the civil rights of third parties. However, from the perspective of perfecting the effectiveness system of judgments, the system of judging power is necessary. Therefore, it is inevitable to finally establish a system of judging power. Once the system of res judicata is established, the revocation of the third party may be greatly limited or even redundant. From the purpose of preventing others from colluding and infringing on the civil rights of third parties through litigation, the original judgment is revoked by retrial to swindle the third person as a retrial case. [2] See Zhang Weiping, Liu Rongjun, Cai Hong: Civil Procedure Law ", Law Press, 1998 edition.
[3] In China's Civil Procedure Law, since there is no system for prohibiting repeated litigation, there is no prohibition in the law for cases that are already in the court but have not yet taken effect, only to ignore the matter. Legally prohibited.
[4] If the concept of the subject of judgment (the concept distinguishes the factual basis and the legal basis of the judgment subject and judgment); the concept and system of judgment effectiveness expansion; the establishment and effectiveness of the judgment; the concept of the power of judgment (the significance of this concept lies in After the judgment is established, the binding force of the court is distinguished from the judgment after the judgment takes effect.
[5] According to the traditional theory of res judicata, the res judicata is limited to the subject matter of the litigation. For the system and concept of judging power, see Jiang Wei, editor: Civil Procedure Law, Higher Education Press, 2009, p. 347. [6] The main reason is the isolation of civil litigation theory and civil litigation practice, making judges in civil justice Almost none of the instruments directly quote the relevant civil litigation theory.
A decision, a ruling and a mediation book may be a more appropriate choice. 17] Second, the nature and characteristics of the third party's revocation of the lawsuit Analysis of the nature and characteristics of the third party's revocation, is conducive to our better grasp and use of the system in litigation practice. The author's analysis is mainly based on the following perspectives: (1) The second person's revocation of the lawsuit is a form of complaint. The person usually divides the lawsuit into a confirmation action and a lawsuit based on the nature and content of the lawsuit. . The confirmation of the complaint refers to the existence or non-existence of the legal relationship that the plaintiff requested the court to confirm its claim. The claim of payment refers to the plaintiff’s claim to the defendant and the request of the court to make a judgment. The so-called payment here refers not only to the defendant's delivery of the plaintiff's money or in kind, but also to the defendant's performance of the plaintiff's required behavior (as inaction). For example, the defendant is required to perform the obligations set out in the contract. The formation of a lawsuit refers to a request by the plaintiff to request the court to change or eliminate the legal status (rights and obligations). The formation of the lawsuit is a common concept in the civil lawsuit theory of the civil law system, also known as the "suit of change of rights." The past textbooks in China are often referred to as “changes of complaints”. The nature of the lawsuit in which the third party revokes can be categorized in the formation of the lawsuit. Although the content of the lawsuit is to revoke the judgment, ruling and mediation between others, the essence is that the decision to change the judgment, the ruling and the mediation book has been Determined legal relationship. This feature is basically consistent with the characteristics of the formation of the lawsuit. Of course, the third party’s revocation of the lawsuit is also different from the form of the lawsuit. The formation of the lawsuit is based on the right of the entity to claim in the civil law - the formation of the right to request, the formation of the obligor, and the third party to revoke the lawsuit is not directly based on the entity's claim, but the procedural law For the court. The claim right in this procedural law is also the subject of litigation for the third party to revoke the lawsuit. At this point, it is similar to the subject matter of the retrial.
(2) The second person revokes the lawsuit as a special remedy procedure. The nature of the procedural lawsuit revoked by the third party refers to the special procedural procedure or the general or usual remedy procedure. Since the third party’s revocation is directed against judgments, rulings and conciliations that have already taken effect in law, the procedural nature of the resignation of the third party should be reconsidered in the nature of the procedure, taking into account the stability of the judgement. [7] The old civil procedure law (Meiji 23) has a so-called "criticism retrial" system (Article 483), that is, someone else deliberately infringes the rights of third parties through a lawsuit (false lawsuit), a third person The original judgment may be revoked by the plaintiff of the original lawsuit and the defendant’s claim for retrial of the retrial. However, this rule was deleted when the Taisho 15 years civil procedure law was revised. Some scholars believe that this is a mistake in the legislation. Therefore, in the interpretation theory, there are still people who advocate the application of the retrial procedure. In the case of retrial, it can be regarded as the violation of the original judgment due to lack of agency power. See (Japan) San Gu Zhongzhi: "The Jurisprudence of Civil Retrial", Legal Culture Society, 1988 edition, page 38, the judgment or dismissal of the ruling, the third party whose rights have been violated, because they cannot be accused of their own reasons, did not participate in the lawsuit An attack and defense method that affects the judgment can be proposed. There is a similar provision in the Japanese Personnel Litigation Law, that is, a third person who is expanded by the judgment can decide to revoke the invalidity, divorce, etc. of the marriage on the grounds of violating the relevant provisions of the civil law. See (Japan) Xintang Xingsi: "The Role of the Civil Litigation System", which has a 1993 edition of the Gege, page 328, which is a special or extraordinary relief procedure. 18] However, the third party’s revocation is different from the retrial. The difference is that after the third party’s third party is the third person in the original lawsuit, unlike the original lawsuit. A certain amount of litigation rights have been exercised in the original lawsuit. Therefore, in terms of focusing on the stability of the referee, there is no need to reach the level of the retrial process. In other words, in judicial policy, the threshold for a third party to revoke a complaint should be lower than the retrial procedure. This is mainly manifested in the need for a retrial procedure for retrial appeals. It is a “second-order” setup. The first phase is a review of the retrial, with retrial reasons, and enters the retrial stage of the case. The third party’s revocation is the same as the general civil lawsuit, and it is still a hierarchical structure. There is no reason to review it. However, the third party’s revocation is not a normal appeal relief procedure, and it is strict for the initiation of the third party’s revocation proceedings. Requirements, otherwise, will affect the stability of the legal relationship that has been resolved because of the abuse of the revocation proceedings.
(2) The second person's revocation is a post-relief procedure. In China, there are two types of litigation systems that protect the third party's ex ante procedural rights and safeguard their civil rights, that is, there is independent claim for third party and no independence. The third party to claim. Both systems are systems that guarantee the legitimate rights and interests of third parties, and are a pre-procedural guarantee relative to the third-party revocation. The so-called "ex ante" here refers to the stage of the procedure before the case is accepted, the judgment of the case, and the mediation take effect. After that, the procedure for redressing the rights involved in the case is an after-the-fact procedure. The criteria for ex ante and after the event are whether the referee is in force. In general, the usual relief procedures are ex ante procedures, and ex post relief procedures are special and exceptional. The third party’s revocation as a post-hoc relief procedure must have certain conditions, otherwise it cannot be mentioned. This condition is that the third party has not participated in the lawsuit between others because of the inability to blame himself, resulting in the inability to exercise the right of litigation in the lawsuit, thereby failing to safeguard his or her legitimate rights and interests. This system is considered to be an after-the-fact procedural guarantee because the system is set solely to achieve the procedural rights of the parties. If the third party could have participated in the lawsuit between others but did not participate in the lawsuit for his own reasons, he could not file a lawsuit against the third party, even if the third party had evidence to prove that the referee or mediation paper was indeed wrong, the infringement Have their own legitimate rights and interests. Emphasizing the procedural rights of the parties is considered to be an important feature and trend of modern civil procedural jurisprudence. In the civil law countries, influenced by the British and American legitimate procedural concepts and litigation philosophy, some scholars proposed the third wave of so-called procedural safeguards (the third wave of civil procedure guarantee), and advocated that the development of civil procedures should turn to procedural safeguards instead of Simple physical protection. This theory firstly revised the teleology of traditional civil litigation from the perspective of teleology, and believed that the purpose of civil litigation is to achieve the procedural guarantee of the rights of the parties, not just to resolve the dispute. 19] The viewpoint of procedural safeguard theory for the establishment of the third-party revocation judgment system in Taiwan in China [8] In the "Civil Procedure Law" of the Hewan area of ​​China, the third-person revocation judgment system was placed in the fifth retrial. In the fifth series.
Judging from its legal arrangement, the intention is that the third party's revocation of the judgment system is a retrial, but it is different from the general retrial.
[9] The Japanese scholar Inoue Therapy published 12 papers on procedural safeguardism between 1983 and 1991, and systematically expounded the viewpoint of procedural safeguardism. Professor Inoue’s procedural safeguard theory elucidated the development trend of the so-called civil procedure, the third wave. This trend reflects five transformations: 1 shifting from heavy results to heavy processes; 2 shifting from focusing on the past to focusing on the future; 3 shifting from focusing on other laws to focusing on self-discipline; 4 shifting from final to tentative; 5 from absolute normative steering of norms The relative instrumentality of the specification. The keynote emphasizes the legitimacy of the procedure and the subjective position of the parties. For the procedural safeguard theory, see the (Japanese) Inoue Code: "Civil Procedures" (the book collects 12 papers on the procedural support theory published by Inoue), published by the Gee Ge in 1991; Xintang Xingsi: "Procedural safeguards The generation and development of the theory--the latest trend of the civil procedure law" contained in the "The Role of the Civil Litigation System", has the 1993 edition of the Gege, and the structure of Page 321 has a direct influence. It can be said that without the theoretical support of the procedural guarantee theory, it is impossible. The theory or understanding that a third person revoked the judgment system is naturally revolutionary to China’s current tradition and reality. Judging from the tradition and reality of our country, the concept of litigation is mainly focused on substantive and light procedures, pure pursuit of substantive justice and substantive reality, and does not pay attention to the procedural guarantee of the rights of the parties. This can be found from the current Code of Civil Procedure Law. Therefore, in this regard, the cognitive basis of the third person's revocation can be said to be a challenge to the traditional concept of civil litigation, which helps people to deepen their understanding of the inherent relationship between procedural justice, procedural legitimacy and legitimacy.
Of course, we can also interpret it from the perspective of preventing the abuse of ex post relief rights, that is, if we do not set up non-responsible for the third person’s own reasons, we do not participate in litigation between others, but only provide that the referee or mediation book is wrong. The third party’s revocation of the lawsuit will result in the third party’s abuse of the right of revocation, which will not only widely shake the stability of the legal relationship that has been resolved, but will also cause the third-party litigation system to fail to perform its due function. Requirements for the litigation economy. Moreover, from the scope of the object of the new civil procedure law to include the ruling and the mediation book in the third-party revoked case, it seems that the issue of procedural safeguards is not perfected, because the ruling and the revocation of the mediation book are usually not in the third place. The reason why people did not participate in the lawsuit.
When recognizing a third party’s revocation, it should pay attention to the difference between the system and the third party’s dissent. Although the third-party objection complaint was also filed by a third party outside the case, it was also based on the maintenance of his civil rights, but the two were essentially different in the nature of the procedure. In 2007, China revised the Civil Procedure Law in part. One of the main contents was the revision of the enforcement system. The revised civil enforcement procedure added a system of appeals against outsiders. Article 24 of the Civil Procedure Law stipulates: "In the course of execution, if the outsider raises a written objection to the execution of the subject matter, the people's court shall examine it within 15 days of the receipt of the written objection. If the grounds are established, the ruling shall be suspended. If the reasons are not established, the ruling shall be rejected. If the outsider or the party disagrees with the ruling and believes that the original judgment or ruling is wrong, it shall be handled in accordance with the trial supervision procedure; if it is not related to the original judgment or ruling, it may be within 15 days from the date of the ruling. In accordance with the provisions of this article, if the outsider’s objection to the execution of the object is not related to the original judgment or ruling, that is, the error of the execution of the subject is not due to an error as an enforcement basis (judgment or ruling), for example In the implementation, the specific property of the outsider is mistakenly used as the target to be executed in the judgment based on the execution. Under such circumstances, the outsider can achieve relief for his or her own rights by filing a lawsuit. The case of the outsider’s objection is that the outsider’s enforcement of the creditor as the defendant (in principle) requires the court to make a lawsuit that may not enforce or revoke the execution of the procedural judgment. The purpose is to prevent or revoke the enforcement agency’s execution of the subject matter.
In addition to the different stages of the application of the dismissal of the third party and the case of the outsider, the case of the objection of the case is only in the early or mid-1990s, and the so-called new procedure guarantee is proposed by the civil law law community in Hewan District of China. On, and gradually become a dominant concept, and in recent years, the revision of the "Civil Litigation Law" is basically guided by this "procedural guarantee theory." The advocate of this concept is Professor Qiu Liangong, who studied at the University of Tokyo and taught at the Law Department of Hewan University. He proposed the so-called surprise prevention theory and the new procedure guarantee concept gradually became an important concept affecting the civil litigation system in the Hewan area of ​​China. For more details, see Qiu Liangong: "Procedural Interest Protection Theory", published by the Sanmin Book Company in 2005.
Limited to the implementation stage, there is no entry into the implementation stage, there will be no complaints from outsiders, and enforcement will induce rights disputes; third parties will revoke the lawsuits as long as the original judgment, ruling, and mediation paper take effect, regardless of the original judgment, ruling, mediation Whether it enters the implementation stage can be mentioned. The main difference between the two is that the third person's revocation is a post-procedure procedure, and the outsider's dissent is a pre-procedure. The reason why the outsider’s objection is a pre-procedure is because the lawsuit does not exist in the premise of participating in another person’s lawsuit. The objection to the case is directly directed at the disputes of others about their own rights, rather than against referees or mediations between others. The middle section of Article 204 of the Civil Procedure Law stipulates that "if it is not related to the original judgment or ruling, it may bring a lawsuit to the people's court within 15 days from the date of the ruling of the confession", which means that the lawsuit is not against the original judgment or ruling, and therefore is not a Post-relief relief procedures.
3. The question of the eligible party to the third party's revocation of the suit of the third party's revocation, what kind of plaintiff is the plaintiff of the third party's revocation, and who the legitimate defendant should be. problem. The problem of the eligible party is the basic problem of the third party's revocation.
In particular, the question of the plaintiff's eligibility for the third party's revocation is related to the important issue of whether the third party's revocation is effective or not, and therefore must be thoroughly studied in theory.
(1) The plaintiff revoked by the third party According to the provisions of the Civil Procedure Law, the plaintiff revoked by the third party must be equivalent to the third party who has the independent claim right and the third party without the independent claim right. The third person. The so-called independent claim third party refers to the person who claims the independent claim of the litigation object of the dispute between others, and participates in the litigation between others. The third party who has the independent claim right usually because he has the right to claim the entity in the substantive law, and participates in the litigation of others because the request claimed by others conflicts with the claim that he has enjoyed, and the other is not entitled to the entity. Claim right. The so-called third party without independent claim means that although there is no independent claim for the objection of the dispute between others, the result of the lawsuit between them is legally related to itself, and the person applying for or notifying the lawsuit is notified. . The third party without independent claim can be divided into two categories in China's civil procedure law: the auxiliary third person and the defendant type third person. The auxiliary third person is always standing on the party of the lawsuit, otherwise it is not a support person, usually taking the initiative to participate in the lawsuit. [2] The third party of the defendant type is the plaintiff and the defendant who are independent of the lawsuit and may bear civil liability. Usually, the court will include it in the lawsuit based on the request of the defendant. litigation. In some cases, the defendant-type third party will take the initiative to participate in the lawsuit against the accused party, mainly the accused of the accused. Therefore, the status of the third person is actually in the position of the defendant.
According to the intent of the legislator, if the judgment, ruling or mediation document that has already taken effect between others has harmed the interests of the third party outside the case because of mistakes, the third party may apply to revoke the judgment, ruling and mediation. This kind of relief is based on the judgment, ruling, and mediation. [2] The auxiliary type has no independent claim. The third person is equivalent to the participant from the civil law country or region. Since the third party who has no independent claim right in China actually includes the third person of the defendant type, it is not possible to simply equate the third person without the independent claim right with the participant from the civil law system.
See Zhang Weiping: "Civil Litigation: Unfolding", Renmin University of China Press, 2004, p. 157. After the entry into force of the book, it is an after-the-fact relief procedure and means. A third party with independent claim rights, in the case of a third person who is the subject of revocation, fails to participate in litigation between others because of his non-blame for his own reasons, and therefore cannot claim his claim in the lawsuit of others. Maintain your civil rights. If there is an independent claim, the third party can claim his own independent claim in the litigation of another person, and the plaintiff and the defendant in the litigation of the other person will become the defendant of the third party litigation. If the third party's independent claim is established, the original plaintiff's request cannot be established, so that the legitimate rights and interests of the third party with independent claim can be maintained. Since the third party has the right to request for an independent claim, it is an independent claim for the subject matter of the dispute of another person. The third party who has the independent right to participate in the lawsuit also participates in the lawsuit by way of prosecution. Therefore, In the civil procedure jurisprudence, even if the third party does not participate in the lawsuit, the third party can still claim rights to others after the judgment, ruling, and mediation of others have taken effect. As far as the effectiveness of the judgment is concerned, the judgment, ruling and mediation between others are not binding on the third party. The reason for the third-party system of independent claims is to solve the disputes together and improve the efficiency of litigation. Therefore, if the third party’s revocation is applicable to a third party with independent claim, it means that the third party has an additional remedy for the independent claim, and can directly claim the plaintiff and the defendant in the other party’s lawsuit as the defendant. Rights can also overturn referees and mediations between others. The former is a general right relief procedure and the latter is a special ex post relief procedure. It should be considered here that if there is a general relief procedure, it is necessary to apply a special ex post relief procedure. Moreover, if the judgment against another person is not binding on the third party itself, there is doubt as to whether it is necessary to overturn the referee between others. This issue has returned to the issue of the judging power of the judgment mentioned earlier in this article.
In the case of a third party without independent claim, since there are two types of third parties without independent claims - auxiliary and defendant type third parties, our analysis will also be based on the third party without independent claim. Type is expanded. Since only the defendant-type third person is likely to bear civil liability, if the judgment on requesting the third party to bear civil liability is wrong, it may cause damage to the third party's civil rights. Thus, in the case of a third party without an independent claim, only the defendant-type third person can act as the plaintiff of the revocation of the lawsuit, and is the plaintiff who revokes the suitability. In the case of a third party without independent claim, if the third party participates in the lawsuit because of the court's notice, the lawsuit rights can be exercised in the first and second trials to protect their legitimate rights and interests. If the first instance does not participate, the court's judgment makes it bear civil liability. In theory, the third party can appeal, requesting the revocation of the original judgment to be sent back for retrial or requesting a change of judgment, and can also realize the right relief. However, when the judgment has already taken effect, the third person without independent claim can seek relief through the third party's revocation. This situation should be relatively small, or the probability of occurrence is very low, because the defendant-type third party is usually notified by the court to participate in the lawsuit. Since it has been notified, if the third party does not participate in the lawsuit, it can only be his own. The reason is that the conditions for filing a lawsuit against the third party are lost. In addition, if it is recognized that the third person is actually the defendant's status, the third person can seek relief through application for retrial, and the retrial is a violation of the law.
In France, according to the provisions of Article 5 83 of the French Civil Procedure Law, the plaintiff who sue the third party to revoke the judgment should firstly be the one who has an interest in the judgment that is requested to be revoked. In theory, the interest here refers to the damage to the third party due to the illegal judgment [3] because the third party who bears the civil liability is still the party, even if the third party does not participate in the lawsuit, the third party has the right to appeal. , seeking appeal relief.
interest. This kind of interest not only refers to material or property interests, but also to spiritual interests; 2 secondly, the plaintiff should be a person who has not participated in the lawsuit as a party or an agent in the original judgment proceedings.该条第1项又具体规定为，1方当事人的债权人及权利继受人在原判决违法侵害权利或其主张独自（个人）法律理由时，可以提起撤销之诉。该条第2项规定，对于非讼案件，未受送达的第三人可以对非讼案件的判决提起撤销判决的诉讼。
在我国台湾地区，提起第三人撤销判决诉讼的原告须具备两个条件：其，是与他人之间的诉讼判决有法律上利害关系的第三人。其二，不是因为第三人的过错而没有参加他人之间的诉讼，导致其不能提出足以影响该判决的攻击或防御方法。如果满足了这两个条件，即为适格的第三人撤销判决诉讼的原告。关于何谓“法律上之利害关系的第三人”，法条上并未具体予以指明，但从“立法理由”的说明来看，我国台湾学者一般认为，应当是指受判决效力拘束的第三人。“立法理由”指出：因为存在判决效力扩张情形，因此，如果受此判决效力扩张影响的第三人在没有可归责于自己的原因而没有参加该诉讼的情形下便强令其受不利判决的拘束，无疑剥夺了该第三人的诉讼权、财产权，因此，在保护该第三人权益的必要范围内可以请求撤销原确定判决。
虽然可以将第三人撤销判决诉讼的原告理解为受原判决效力扩张影响的第三人，但法律上的规定依然是抽象的。所谓判决效力及于第三人，在法律上有明确规定的是我国台湾地区的规定以及“民法”第275条关于连带债务的判决效力扩张的规定。按照台湾民事诉讼判决效力扩张的理论，有学者认为在涉及人事（身份关系）诉讼中如婚姻无效之诉、撤销婚姻之诉、确认婚姻成立或不成立之诉、否认子女之诉、认领子女之诉、认领无效之诉、撤销认领之诉等以及关于法人关系或公司关系的诉讼中法人社员以及公司股东有参与诉讼程序保障利益，因此判决的既判力应扩张及法人社员及股东，如撤销法人总会决议之诉、宣告财团董事行为无效之诉、撤销公司股东会决议之诉、宣告股东会决议无效之诉、解任公司董事之诉。2由于判决效力扩张的情形，学者存有争议，因此关于第三人撤销判决诉讼的原告适格问题在学术上也是一个尚无定论的问题。〔7〕我国台湾地区“新民事诉讼法”实施后，些法院也按照该“民事诉讼法”的规定审理和判〔4〕（法）让文森、塞尔西金沙尔：法国民事诉讼法要义》（1999年，第25版），罗结珍译，中国法制出版社2001年版，页1286.该书第28版于2006年出版，在论及第三人撤销判决诉讼的主体条件时，增加了人撤销判决制度的介绍，在此表示感谢。
〔5〕参见吕太郎：第三人撤销之诉――所谓有法律上利害关系之第三人“载《月旦法学杂志》2003年第99号。
〔6〕参见陈荣宗：第三人撤销诉讼之原告当事人适格“《月旦法学杂志》2004年第115号。
决了第三人撤销判决的诉讼，但关于何谓法律上的利害关系人，实务界也认识迥异。在我国台湾地区台中高分院一起第三人撤销判决诉讼中，法院认定第三人系原判决当事人房产纠纷中标的物的买受人，享有向原当事人之请求所有权转移登记的债权，因此是第三人撤销诉讼的利害关系人。但在我国台北地方法院审理的另起第三人撤销诉讼的案件中，同样是系争标的物的所有人，法院却认为该第三人不受前诉原判决效力的拘束，因而不是撤销诉讼的适格原告。
（二）第三人撤销之诉的被告第三人撤销之诉的被告是原判决、裁定、调解书中的原告和被告当事人。如果原诉讼有第三人的，则要具体分析，看该第三人是否应当作为被告。从理论上讲，该第三人是有独立请求权第三人的，因为该第三人主张了实体权利，无论第三人是否败诉，都涉及他的实体权利，因此，该第三人应当作为被告，从而可以在第三人撤销之诉中一并解决实体权利是否成立的问题。对于无独立请求权第三人的场合应当将该第三人作为被告，因为无独立请求权的第三人在原诉中的地位实际上就是被告，因此在第三人撤销之诉中，也依然应当作为被告。
四、第三人撤销之诉的客体所谓第三人撤销之诉的客体，是指第三人撤销之诉中第三人请求法院撤销的对象。我国的第三人撤销之诉与法国和我国台湾地区的撤销之诉有所不同，不仅包括生效判决，也包括裁定和调解书。
判决是对民事诉讼实体争议的裁判，他人之间的错误判决有可能在实体上损害案外第三人的民事权益，也就可以作为撤销之诉的客体。与法国不同，我国撤销之诉的客体为已经发生法律效力的判决。这里考虑的是只有生效的判决才能实际发生实体上的法律效果，因此规定只有生效判决才能成为撤销之诉的客体。由此，似乎在我国也有既判力的意思。在法国的场合，第三人撤销之诉不限于原判决已经确定，只要是终局判决，即可以提起。虽然在法国，第三人撤销判决诉讼也被作为特殊救济程序，也规定了既判力制度，也承认判决效力的相对性，但与其他大陆法系国家如德、日不同，法国判决的既判力并没有在民事诉讼法中规定，而是规定在法国民法典之中。在性质上，法国将既判力及相关理论归属于实体法层面的问题。因此，在法国，常常将判决的效力等同于契约的效力；德、日判决效力及相关理论归属于诉讼法层面。
这种差异表现在：在法国，所有终局判决一经宣告，即具有既判力，相当于德、曰判决理论中的〔8〕参见黄国昌：“第三人撤销诉讼之原告适格――评最近出现之二个裁判实例”《月旦法学杂志》羁束力。如果不服判决的当事人用尽所有通常救济手段之后，未能推翻该判决的，该判决发生“不可争效力”（irr6vocale）。法国未确定的判决即具有既判力效果，是因为在法国民法制定之前，理论上已经认可了未确定判决即具有拟制真实或绝对效力的观点，并为民法所接受。
也就是说，在法国法上，所有终局判决均有被推定为真实的效力。而在德、日，依据判决既判力制度和理论，未确定的判决基本上不发生对当事人的效力。
调解书与判决书相同，也涉及争议民事权益问题，因为调解书也与判决具有同等法律效力，有执行力，因此错误的调解书也可能损害第三人的民事权益，也应当作为撤销之诉的客体。
将调解书纳入第三人撤销之诉的客体范围是我国第三人撤销之诉的一大特色。在我国，调解实际上也是一种审判活动，调解的达成离不开法官的活动，而且法官在调解过程中具有很强的引导作用。调解书更是法院的种司法文书，法律上调解书与判决具有同等效力。基于这样的中国特色，因此，将调解书作为客体是可以理解的。3W关于可通过撤销之诉予以撤销的裁定，情形相对复杂些，也是个存有异议的问题，即能否通过诉的方式请求撤销法院的裁定。法律之所以作出这样的规定，也许是以再审客体作为参照。即使可以通过诉的方式请求撤销裁定，也因为民事诉讼中的裁定有很多，民事诉讼法又没有明确规定可以撤销的裁定的范围，这就使得哪些裁定可以作为撤销之诉的客体成为一个问题。在认可可通过诉的方式请求撤销裁定的前提下，笔者分析的思路是，回答这问题，首先应当确定可撤销裁定的前提条件，可以考虑以下两点：其，应当是那些直接侵害第三人民事权益的错误裁定。也就是说，应当是那些直接涉及第三人民事实体权益的裁定。从新民事诉讼法第154条明确规定适用裁定的事项来看，主要有以下情形：①不予受理；②对管辖权有异议的；③驳回起诉；④保全和先予执行；⑤准许或者不准许撤诉；⑥中止或者终结诉讼；⑦补正判决书中的笔误；⑧中止或者终结执行；⑨撤销或者不予执行仲裁裁决；⑩不予执行公证机关赋予强制执行效力的债权文书。虽然在民事诉讼中不只是上述事项适用裁定，但至少上述事项必须使用裁定，同时也表明这些事项的重要性。所以，首先要讨论的是，这些裁定中哪些可以作为第三人撤销之诉的客体。由于第三人撤销之诉主要是对实体权利的救济，因此，如上述裁定中关于他人之间诉讼系属中法院对不予受理、管辖权异议、驳回起诉、中止与终结诉讼、中止与终结执行、诉讼保全、先于执行、补正判决书中的笔误等事项所作的裁定都没有必要作为撤销之诉的客体。从民事诉讼法明确规定的裁定适用〔9〕德日判决效力理论中，所谓判决的羁束力，是指判决一经宣告或送达，便发生对法院的约束力，除非通过救济程序，如上诉或再审，法院不能改变。与判决的既判力不同，羁束力发生无需以判决确定为前提。
〔〕关于调解书，一个可以进步思考的问题是：当他人之间的调解协议在效力上将扩张到第三人时，是否还可以允许进行调解，如果不能调解，调解书的法律效力在主体上又具有相对性时，调解书是否还应纳入可撤销之诉的客体范围就值得思考了。
范围来看，涉及民事实体权利的裁定并不多，主要有：①关于财产保全（包括诉前及诉中财产保全）的裁定；②关于行为保全的裁定；〔1〕②关于先于执行的裁定等。由于否定性裁定产生的效果是使某些程序不能发生或继续，如不予受理、驳回起诉、中止与终结诉讼、中止与终结执行、撤销或者不予执行仲裁裁决、不予执行公证机关赋予强制执行效力的债权文书等，这些裁定即使是错误的，也不会发生侵害第三人民事权益的结果，因此，也无需纳入撤销之诉的客体。
其二，有必要通过第三人撤销之诉予以撤销的裁定。这思路是从第三人撤销之诉的诉的利益角度来进行分析。虽然有些错误的生效裁定会侵害第三人的合法权益，但却没有必要通过提起第三人撤销之诉予以撤销。例如，关于财产保全的裁定，如果有错误，一定是没有满足关于财产保全的条件，如将第三人的财产进行保全。无论何种情形下的财产保全错误都可以要求实施保全措施的法院撤销关于该财产保全的裁定，而不是像判决、调解书那样必须通过特殊救济程序予以撤销。从裁定效力的理论上讲，法院（包括上级法院）不能撤销的裁定，是那些具有羁束力〔2〕和既判力的裁定。〔3〕从我国的情形来看，裁定一般是对程序性问题的裁决，因此这些裁定是没有羁束力和既判力的。只有那些涉及实体处理（与涉及实体权利义务不同，是直接关于实体权利义务的处理）的裁定才具有既判力。例如关于支付令的裁定以及关于诉讼费用的裁定等。从民事诉讼法所规定的裁定来看，这些裁定似乎都是程序事项的裁定，没有涉及实体处理的裁定。有涉及实体处理的，如关于支付令和诉讼费用，又不使用裁定。支付令本身是一种法院命令作为的方式，关于诉讼费用的处理采用的是裁判方式决定，因此也都不能构成第三人撤销之诉的裁定。由于对程序事项所作的裁定没有羁束力和既判力，因此，对于错误的裁定，第三人可以请求法院予以撤销或改变（法院也可以依职权撤销或改变），而无需通过诉的方式予以撤销。3从上述两点分析来看，似乎没有什么裁定可以纳入可撤销之诉的客体范围。这也许是为什么在法国和我国台湾地区不将裁定纳入撤销之诉的客体的原因之一。不过，上述分析是从规范使用裁定的角度，是一种纸面上的分析，实践中有可能出现不规范适用裁定的情形（是否有这样一种可能，裁判的形式是裁定，但实质却是判决的情形。这里涉及的问题是法律规定的裁定是实质意义上的还是形式意义上的），这些情形有可能成为撤销之诉的客体，就这一角度〔1〕2012年民事诉讼法对保全制度进行了修改，新法规定，根据对方当事人的申请，可以裁定对其财产进行保全、责令其作出一定行为或者禁止其作出一定行为。（民事诉讼法第100条）〔2〕裁判（判决和裁定）的羁束力是指，一旦裁判成立，即对法院产生不可改变和撤销的约束力，无论是作出裁判的法院还是上级法院，除非通过专门程序。与既判力不同，羁束力的产生并不要求裁判确定。裁判一旦确定即发生既判力。既判力的作用在于约束后诉法院不得作出与前诉裁判矛盾的裁判，当事人不得就已经裁判的事项再行争执。关于羁束力和既判力，详见张卫平：《民事诉讼：展开》，中国人民大学出版社〔3〕参见陈荣宗、林庆苗：《民事诉讼法》，三民书局股份有限公司2005年版，页576、577.〔4〕国内也有学者认为，一旦裁定生效，非经法定程序，法院也不得改变。参见张卫平、李浩：新民事诉讼法原理与适用》，人民法院出版社2012年版，页314.而言，民事诉讼法的规定也并非完全没有意义。
五、第三人撤销之诉提起的程序及裁判根据民事诉讼法第56条第3款的规定，案外第三人可以自知道或者应当知道其民事权益受到损害之日起六个月内，向作出该判决、裁定、调解书的人民法院提起诉讼。民事诉讼法并没有规定知道或应当知道的最长时限，因此，不论经过多长时间，只要是在知道或应当知道的六个月以内，都可以行使起诉权。关于行使撤销之诉的诉权期限与民事诉讼法关于再审申请的期间的规定保持了一致。这也说明，第三人撤销之诉在救济手段的性质上属于特殊或非常救济手段。
第三人撤销之诉的管辖法院是作出判决、裁定和调解书的法院。如果要求撤销的裁判是审法院，则管辖法院就是该一审法院；如果要求撤销的裁判是第二审法院作出的，则管辖法院就是第二审法院。
（二）第三人撤销之诉的审查和受理第三人撤销制度的审查和受理的问题，主要涉及对于该诉是按照般的诉讼对待，还是按照特殊救济的诉讼对待的问题。如果按照一般的诉讼，则法院只需要对诉的提起进行形式审查而非实质审查。例如，关于诉讼提起的理由是无需进行实质审查，也不需要当事人加以证明。相反，特殊救济诉讼的启动则需要对诉讼提起的事由，如原判决、裁定、调解书存在错误，进行实质性审查。对于事由的存在是否应达到较大可能性的程度，不能用再审制度中的“确有错误”加以要求。
法院对第三人申请裁判和调解的请求，经审理之后，作出否定性或肯定性裁判。认为诉讼请求不能成立的，判决驳回诉讼请求；认为诉讼请求成立的，应当改变或者撤销原判决、裁定、调解书。
改变原判决、裁定、调解书，是指不完全否定原裁判和调解书的内容，仅仅将错误的部分予以纠正。例如，在原判决中将本属于第三人的财产错误地认定为原告诉讼请求的财产之中，并终局判决该财产属于争议财产的部分。在此种情形下，经审理认为该财产应属于第三人的，就要改变原判决中涉及第三人财产的判决部分。应当注意的是，无论是撤销还是改变原裁判，在裁判的形式上，撤销或改变原判决、调解书的适用判决，因为不管是撤销还是改变判决或调解书，都是对原判决、调解书所涉实体权利义务的裁判。在裁判的法理上，要求对实体问题的终局性裁决使用判决。
按照新民事诉讼法的规定，第三人撤销之诉的诉讼请求不成立的，判决驳回。这里没有区分撤销的客体，无论是判决、裁定还是调解书。从对诉讼请求的处理来看，使用判决是可以成立的。一个吊诡之处是，既然是对一种诉讼请求的裁判，但却是针对裁定的，而裁决的方式又是判决，这总使人感觉有些异样。因为如果是撤销或改变裁定的情形，想必从规定的逻辑而言，似乎也应该用判决。比较一下再审审理裁判的情形，应该比较清楚这中间的异样之处了。
对于可再审的裁定，如不予受理、驳回起诉等的裁定，再审审理后不论驳回再审请求，还是撤销原裁定，使用的裁判方式都是裁定而非判决。对于这种处理方式，一种解释是因为原裁定本身是针对程序问题的，因此，对程序问题的处理也应当用裁定。以这样的观点来看待第三人撤销之诉，则第三人撤销之诉请求撤销的客体是裁定时，在裁判的处理上也应当用裁定才是。但这显然又与对第三人撤销之诉诉讼请求的实体处理须用判决不致。这也许就是将裁定纳入撤销之诉的客体所带来问题。
原判决、裁定被撤销之后，就只存在审理撤销之诉的法院作出的撤销判决。在改变判决的场合，当法院改变原判决之后，原来的判决也不再存在，审理撤销之诉的法院是以新的形成判决替代了原判决。这与上诉法院对第审法院判决的改判是同样的情形。
这里需要注意的是，第三人撤销之诉的审理范围应当仅限于第三人请求撤销的部分，理由是基于民事诉讼处分原则的要求。另个问题是，经审理虽然第三人的撤销请求不能成立，但发现他人之间的判决、裁定和调解书有错误时，是否应当主动依职权予以撤销，笔者认为，基于民事诉讼处分原则，法院同样也不能撤销。由此，我们也可以看出处分原则对于规范审判行为的重要意义。
单纯撤销调解书用判决的方式，同样也基于是对请求撤销调解书请求的实体处理。对于改变原调解书的情形，可以有两种思路：其，法院以判决的形式直接改变原调解书的内容；其二，法院首先用裁定撤销调解书，然后由原调解的双方当事人达成新的调解协议，法院再根据新的调解协议制作新的调解书。笔者比较认同后一种思路。
六、结束语本文关于第三人撤销之诉制度的构成及运用的分析是基于规范分析的视角，从民事诉讼的理论和逻辑推演，因此，很难预测该制度运用当中可能发生的问题，这就只有针对具体情形，根据第三人撤销之诉制度的目的和精神予以处理。可以想象的是，由于第三人撤销之诉可能颠覆原有的判决、裁定、调解书，导致原有的既决事项发生改变，因此，如何防止滥用第三人撤销之诉恐怕是实践中需要注意的首要问题，以免进步影响裁判的安定性。另外，要使第三人撤销之诉这一制度合理运行，还需要相应的配套制度和措施。例如，进一步完善第三人诉讼参加的通知制度，使第三人尽可能通过事前程序维护自己的权利，减少事后程序的使用，以实现诉讼经济性和裁判安定性要求。作为细化民事诉讼法规定的司法解释，在保证合理运用第三人撤销之诉方面还有许多工作要做。因此，关于第三人撤销之诉的理论探索还刚刚展开，笔者期待对此研究的不断深入。
（责任编辑：傅郁林）

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Accessories Features
1,The models at the same work up to the movable cone diameter. Thus, with the same type of cone crusher, having a higher performance and productivity.
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3, Has good stability when iron and other non-broken material into the machine, over iron protection device will automatically be released, and then automatically reset. Iron protection over the discharge opening with a fixed return point, miscellaneous iron through the crushing chamber can quickly restore the original discharge opening.

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