我国第三人撤销之诉适用问题探析
发布时间：2018-10-16 16:24
【摘要】：我国的市场经济日益发达,市场主体之间的交易关系错综复杂,反映在法律层面,尤其是民事诉讼法上,就外化为在审民事案件的诉讼利益的主体范围扩大化。按照传统的诉讼利益观点,诉讼利益通常只给予原告和被告双方当事人之间,但随着社会关系网络的复杂化,案件很可能侵犯到案外第三人的正当利益,有权利就该有救济,因而,构建第三人撤销之诉是作为对案外第三人的司法救济的一种诉讼制度。除了立法体系上的意义,树立该制度还有司法实践层面的意义,旨在遏制日益严重的虚假诉讼现象。程序保障和实体公正息息相关,当发生效力的判决对未能参加诉讼的案外人造成不利影响时,如何对案外人进行救济是重要的法律问题。在第三人撤销之诉制度设立之前,对于案外人的权利救济主要是执行异议和申请再审,但收效甚微且存在争议。第三人撤销之诉作为一项新的诉讼制度,目前在司法实践中运用并不多,尚处于摸索阶段。《民事诉讼法》对该制度的规定较为原则简单,有待进一步完善和深化。 第三人撤销之诉起源于法国,独立于其他诉讼制度,为保障第三人利益的非常上诉手段。第三人撤销之诉,系因不可归责于自己事由而未参加他人诉讼的案外人,案件的结果有对损害了其正当利益或者是无权处分,当他又没有参与到案件当中,法律为了维护诉讼制度的实质和程序公正,赋予案外人起诉撤销原案的诉讼结果对其不利部分的诉讼程序。第三人撤销之诉可以改变已经确立的法律关系,其性质应为形成之诉。第三人撤销之诉作为特殊的诉讼制度,具有法定性和特定性、事后性、独立性及法律监督性的特征。第三人撤销之诉制度有其存在的理论根基和法理依据,既判力的扩张以及反射效力,是第三人撤销之诉的产生背景。当事人主义的固有缺陷日益显露,则是该事后司法救济制度产生的更深层次的法理根据。 如前所述,在民事诉讼法的修改中新确立了第三人撤销之诉制度,不仅使得第三人事后司法救济制度在立法体系上更趋于完整性,同时,在司法实践层面,有助于遏制频频发生的恶意诉讼。从立法制度设计看,此前已有的再审之诉、执行异议之诉,限于自身的局限性,无法满足第三人的事后程序保障。随着我国市场经济发展的越发深入,诉讼涉及到案外人的利益的现象只会更多,提早确立相关第三人的事后救济措施,是有前瞻性的立法和司法实践制度。 我国法律虽然确立了第三人撤销之诉制度,但由于规定较为原则,在适用中存在诸多问题,突出表现在：立案条件不明确、条文内容理解存争议、审理程序无规定以及缺乏预防、救济和规制措施。 借鉴外国和我国台湾地区的立法及实际做法,结合我国现实国情,第三人撤销之诉制度应在以下几个方面进行完善：明确立案条件,严格受理范围；确立第三人范围,排除现存争议；规范审理程序,统一裁判效力；建立事前职权告知制度,完善救济和规制措施。
[Abstract]:China's market economy is becoming more and more developed, the transaction relation between market subjects is complicated, and it is reflected in the legal level, especially in the civil procedure law, the main scope of the litigation interests outside the civil case is expanded. In the view of the traditional lawsuit interests, the interests of the lawsuit usually only give the plaintiff and the defendant of the defendant, but with the complication of the social relationship network, the case is likely to violate the legitimate interests of the third person outside the case, and there is a right to remedy it. Therefore, The third party's withdrawal is a kind of lawsuit system which is the third party's judicial remedy. In addition to the significance of the legislative system, the article sets up the meaning of the system and the judicial practice level, and aims at curbing the increasing false lawsuit phenomenon. Procedural safeguards and entity justice are closely linked, and how to remedy an outsider is an important legal issue when the decision to take effect adversely affects the person who fails to participate in the proceedings. Before the third party's withdrawal of the prosecution system, the right remedy for the outsider is mainly the execution of the objection and the application for retrial, but the effect is very limited and there is a dispute. The third person withdraws the action as a new system of action, and is still in the groping stage in the judicial practice. The Civil Procedure Law of the People's Republic of China is simple in principle and needs to be further improved and deepened. The withdrawal of the third party originated in France, independent of other procedural systems, and is very appealing to safeguard the interests of the third party Means. Where the third person withdraws the case, the result of the case is that it damages its legitimate interests or has no right to dispose of any other person who is not involved in the proceedings of another person due to the fact that it is not attributable to his own matter. In case he has not participated in the case, the law is to safeguard the substance and procedure of the lawsuit system. A lawsuit brought to an outsider to bring a suit against an original case against an adverse part of the case. Procedure. The third person's withdrawal of the complaint may change the established legal relationship, and its nature shall be formed The prosecution of the third person as a special system of action, and has the characteristics of legality and specificity, ex-teness, independence and legal supervision. The third party's appeal system has the theoretical foundation and legal basis of its existence, both the expansion of the force and the reflection effect, which is the generation of the third party's withdrawal. On the background, the inherent defect of the party doctrine is becoming more and more obvious, it is the deeper legal principle of the post-hoc judicial relief system. According to the above, in the revision of the Civil Procedure Law, the third party's withdrawal system is newly established, which not only makes the third party's ex post judicial relief system more complete in the legislative system, but also helps to contain frequent occurrences at the judicial practice level. The malicious action of the third party cannot be satisfied from the design of the legislative system, the lawsuit before the retrial, the lawsuit against the execution of the objection, the limitation of itself and the limitation of its own. With the development of market economy in our country, the phenomenon of lawsuit involves the benefit of the outsider, and the ex post relief measure of the third party is established early. It is a forward-looking legislation and division. Law practice system. Although the law of our country has established the system of prosecution of the third person, there are many problems in the application because of the principle that the case is not clear, the contents of the provisions understand the dispute, there is no provision in the trial procedure and the lack of prevention. On the basis of the legislation and practice of foreign countries and Taiwan region, we should perfect the system of prosecution of the third person in combination with the reality of our country, and the third person's withdrawal system should be perfected in the following aspects: the case-making condition and the strict acceptance range; the third person's scope is established and excluded. Existing dispute; normative trial procedure, unified referee effect; establishment of prior authorization notification system
【学位授予单位】：安徽大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.1
本文编号：2274965
[Abstract]:China's market economy is becoming more and more developed, the transaction relation between market subjects is complicated, and it is reflected in the legal level, especially in the civil procedure law, the main scope of the litigation interests outside the civil case is expanded. In the view of the traditional lawsuit interests, the interests of the lawsuit usually only give the plaintiff and the defendant of the defendant, but with the complication of the social relationship network, the case is likely to violate the legitimate interests of the third person outside the case, and there is a right to remedy it. Therefore, The third party's withdrawal is a kind of lawsuit system which is the third party's judicial remedy. In addition to the significance of the legislative system, the article sets up the meaning of the system and the judicial practice level, and aims at curbing the increasing false lawsuit phenomenon. Procedural safeguards and entity justice are closely linked, and how to remedy an outsider is an important legal issue when the decision to take effect adversely affects the person who fails to participate in the proceedings. Before the third party's withdrawal of the prosecution system, the right remedy for the outsider is mainly the execution of the objection and the application for retrial, but the effect is very limited and there is a dispute. The third person withdraws the action as a new system of action, and is still in the groping stage in the judicial practice. The Civil Procedure Law of the People's Republic of China is simple in principle and needs to be further improved and deepened. The withdrawal of the third party originated in France, independent of other procedural systems, and is very appealing to safeguard the interests of the third party Means. Where the third person withdraws the case, the result of the case is that it damages its legitimate interests or has no right to dispose of any other person who is not involved in the proceedings of another person due to the fact that it is not attributable to his own matter. In case he has not participated in the case, the law is to safeguard the substance and procedure of the lawsuit system. A lawsuit brought to an outsider to bring a suit against an original case against an adverse part of the case. Procedure. The third person's withdrawal of the complaint may change the established legal relationship, and its nature shall be formed The prosecution of the third person as a special system of action, and has the characteristics of legality and specificity, ex-teness, independence and legal supervision. The third party's appeal system has the theoretical foundation and legal basis of its existence, both the expansion of the force and the reflection effect, which is the generation of the third party's withdrawal. On the background, the inherent defect of the party doctrine is becoming more and more obvious, it is the deeper legal principle of the post-hoc judicial relief system. According to the above, in the revision of the Civil Procedure Law, the third party's withdrawal system is newly established, which not only makes the third party's ex post judicial relief system more complete in the legislative system, but also helps to contain frequent occurrences at the judicial practice level. The malicious action of the third party cannot be satisfied from the design of the legislative system, the lawsuit before the retrial, the lawsuit against the execution of the objection, the limitation of itself and the limitation of its own. With the development of market economy in our country, the phenomenon of lawsuit involves the benefit of the outsider, and the ex post relief measure of the third party is established early. It is a forward-looking legislation and division. Law practice system. Although the law of our country has established the system of prosecution of the third person, there are many problems in the application because of the principle that the case is not clear, the contents of the provisions understand the dispute, there is no provision in the trial procedure and the lack of prevention. On the basis of the legislation and practice of foreign countries and Taiwan region, we should perfect the system of prosecution of the third person in combination with the reality of our country, and the third person's withdrawal system should be perfected in the following aspects: the case-making condition and the strict acceptance range; the third person's scope is established and excluded. Existing dispute; normative trial procedure, unified referee effect; establishment of prior authorization notification system
【学位授予单位】：安徽大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.1
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