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On August 31, 2012, the 28th meeting of the Standing Committee of the 11th National People's Congress voted on the decision to amend the Civil Procedure Law. Some new litigation systems have been added to this revision of the Civil Procedure Law, and the third party’s lawsuit has been a new system. Although there are controversies about the setting up of the system in the revision, the research and discussion system of the system should be properly handled by the theoretical and practical circles. This paper attempts to reveal the system structure of the third party's revocation proceedings through the following analysis, and proceeds to theoretically expound the possible problems in the application of the third party's revocation of the suit, so as to promote a more in-depth discussion of the system in the theoretical and practical circles.

The third party who seeks the right and has no right to independent claim) has not participated in the lawsuit because the cause cannot be attributed to him, but there is evidence that some or all of the contents of the judgment, ruling, or mediation book that have legal effect are wrong, and damages their civil rights and interests. Anyone who knows or should know that his civil rights have been damaged has been brought to the people's court that made the judgment, ruling, and mediation within six months from the date of the damage. If the people's court hears the case and the lawsuit request is established, the original judgment, ruling or conciliation statement shall be changed or cancelled; if the claim is not established, the claim shall be rejected. “This provision means that a new procedure and system of lawsuits have been established in our country’s civil procedure law – a third party’s revoked suit. In a nutshell, the so-called third party’s revocation of a lawsuit means a third person outside the case. Applying to revoke the ineffective, erroneous judgments, rulings, and mediations among others to safeguard their own civil rights and interests.The establishment of this system is a major move in the revision of this Civil Procedure Law.

In the sense of pursuing substantial justice, the goal of the lawmaker’s addition of a third party to revoke a lawsuit is to protect the civil rights and interests of third parties outside the case by revoking wrong judgments, rulings, and mediations among others. The premise of the revocation of the lawsuit is that the wrong judgments, rulings, and mediations that have taken effect between others infringe on the interests of third parties outside the case. It is because of this that it is necessary to revoke judgments, rulings, and mediations that have 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 judgments, rulings, and mediations that have already entered into force among others in the form of lawsuits is also based on the safeguarding of third-party procedural rights, with the purpose of procedural guarantees. . The lawsuit that the third party of our country withdraws the lawsuit requires that the party that brought the third party to revoke the lawsuit must be a third party who has not participated in the lawsuit because the cause cannot be attributed to himself. As the third person outside the case did not participate in the proceedings in the original judgment, ruling, mediation and litigation proceedings, their procedural rights were not protected. If a third person outside the case participated in a lawsuit between others, the third person could In the lawsuit, by exercising the corresponding litigation rights to safeguard their civil rights, the third party should be given procedural opportunities and rights to safeguard afterwards.

In our country, the addition of this system has its practical need, that is, people hate the phenomenon that is more commonly found in the reality of infringing on the legitimate rights and interests of others by means of judicial proceedings. For example, through false lawsuits, [1] malicious lawsuits, [U pseudo-name lawsuits] [3] harming the legitimate rights of the parties or third parties outside the case. For this phenomenon, in terms of legal response, in addition to improving the evidence system, it can effectively protect the legitimate rights and interests of the third party. Some scholars’ draft amendments to the Civil Procedure Law also stated that when explaining the necessity of a third party's decision to revoke the judgment system, the establishment of such a system would help to prevent malicious collusion between the parties and damage through litigation.[1] Refers to formal litigation The two parties conspired to collaborate through fictional entity disputes that did not actually exist (including the absence of substantive legal relationships between the parties and the existence of substantive legal relationships, but there were no disputes). The judgment of the lawsuit reached a lawsuit that damages the rights or interests of third parties outside the lawsuit.

〔2〕 Malicious litigation refers to the fact that the party has abused the right of action to file a civil lawsuit by fabricating facts or reasons so as to harm the interests of the other party.

[3] The litigation refers to the fact that the litigant is not a party to a civil dispute, but lodges a lawsuit with the litigant in the name of one party to the dispute in order to obtain benefits from it.

〔4〕 Article 112 of the revised Civil Procedure Law of 2012 stipulates: If a malicious collusion occurs between the parties and an attempt is made to infringe upon the lawful rights and interests of others through litigation or mediation, the people’s court shall reject the request and impose fines and detentions according to the seriousness of the circumstances. ;Constitute a crime, be held criminally responsible.

Three rights. 5) From the point of view of these proposals, it is obviously affected by the "third person revocation of lawsuit" system [6] in the "New Civil Procedure Law" in Taiwan. The "third party revocation proceedings" system in the "New Civil Procedure Law" of Taiwan Province of China originates from the French tiferceopposition system, that is, the third party cancels the opposition objection system. 7) It is logically possible to establish a revocation of a third person's lawsuit by revoking an erroneous judgment, ruling, mediation, and remedy of a third party's civil rights and interests. However, some scholars have pointed out that the remedy for the rights and interests of third parties can be achieved through the retrial procedure, and there is no need to set up an independent third party to revoke the complaint system. The main problem of 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 third parties to be the subject of retrial applications, and the third party’s right to It can be achieved. 8) In the judicial interpretation of the Supreme People's Court in 2008 on retrial, under the given conditions, retrial assistance was opened to third parties outside the case. 9) In the Taiwan region of China, some scholars have mentioned this in the dissenting opinion of the third party's decision to withdraw the ruling....10) The question here is whether the remedy for third party rights is to be achieved through the revision of the retrial system, or whether it alone Set up a third party to revoke the lawsuit system. The author believes that if one considers the particularity of the third party's revocation of the suit (eg subject restriction, referee's effectiveness, etc.), it is not impossible to establish or stipulate the third party's revocation action alone. Essentially, the third party's revocation of the lawsuit is still vested in special remedies and should belong to the category of retrial. The revocation of the third party is essentially the reopening of the subject's scope to the third party.

The real reason for the third party to withdraw the lawsuit is that the issue of the relationship between the principle of relativity and the protection of the rights of third parties. The so-called relativity principle of judgment effectiveness means that the judgment effect between others is in principle only valid for the parties to the lawsuit, and cannot be restricted to third parties other than the parties. Only if the validity of the judgment is expanded, will it occur outside the parties. Three people's binding force. 11) The principle of relativity of judgment effectiveness is to safeguard the third person outside the case. [5] Jiang Wei, Chief Editor: "Civil Procedure Expert's Revision of the Proposal and Legislation for Justification", Law Press, 2008, p. 319. [6] in China One of the “Civil Procedural Laws” in Section 5 of the Bay Area stipulates that the “third party revocation proceedings” stipulates in the first section of the section (the “Public Litigations Law” in Article 507) that the third party’s ruling system is The content, in concept, uses the "third person to withdraw the lawsuit". The Bay Area scholars in China generally use the expression "third person to withdraw the lawsuit". The author believes that a more accurate statement should be “a third person’s request to revoke a judgment suit” may be referred to as a “third person's decision to rescind a judgment”. Therefore, in this article, similar systems in France and China’s Hewan area are also known as "The Third Party Cancels the Judgment System" as a lawsuit and procedure, which states "the third party cancels the judgment appeal", "the third party revokes the judgment", and the "third party cancels the judgment procedure".

[7] Some scholars have translated it as "a third person to file an objection to cancel the judgment" or a third-person objection. See Jean Vincent, Selsey Kinschal: The French Civil Procedure Law, translated by Luo Jiezhen, China Legal Publishing House, 2001, pp. 1281, 1282; French Code of Civil Procedure, translated by Luo Jiezhen, China Legal Publishing House, 1999 , pp. 117 [9] Article 5 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the Procedures for the Trial Supervision of the Civil Procedure Law of the People's Republic of China stipulates: Outsiders must claim rights to the subject matter determined by the original judgment, ruling, and mediation book. If it is impossible to file a new lawsuit to resolve the dispute, the original judgment or order may be made within two months after the judgment, ruling, or conciliation statement has taken legal effect or within three months from the time when the interest is known or should have been known to have been damaged. The higher court of the people’s court of the mediation book applied for a retrial.

〔0〕See Chen Rongzong, Lin Qingmiao: "Civil Procedure Law", Sanmin Shu Bureau Co., Ltd. 2005 Edition, page 808. [1] See (曰) Ito Truth: Judgment on the effectiveness of the third party, "(载)曰井Governing the Code, Sasuke Takeshi, Ito Shin: The New Civil Procedure Law, Japan Review Society, 1984 Edition, p. 295. Because of the principle of relativity of verdict effects, verdicts between others are not binding on other third parties. Even if another person mistakenly verifies that the property of a third person other than the case belongs to another person, it does not prevent the obligee from defending his property through litigation. Only when the third person is constrained by another’s ruling outside the case, the effect of res judicata has occurred. When the trio expands, it may not be able to protect its legal rights through the original lawsuit, but in this way, the effect of the third party to revoke the lawsuit will be greatly reduced, and will be limited to the expansion of judgement effectiveness among others. .

The question is whether there is a system of judgement in our civil lawsuits. Judging from the provisions of the Civil Procedure Law, China has not explicitly provided for the judgement of judgments as civil law countries such as Germany, Japan, and South Korea. Although from the end of the last century, the viewpoint seems not to be familiar with and recognized by people, and the concept of resolute force is only used in very few occasions. Indirectly reflecting the effect of judgment on the effectiveness of resolu- tion is the provision of the Civil Procedure Law concerning the “No Things Simultaneously”, that is, the case where the judgment or ruling has already had legal effect. If the party has indicted, the plaintiff shall be notified to handle the complaint in accordance with the complaint, but the People’s Court permits the withdrawal of the case. except. Res Judicata as a system includes the subjective scope, objective scope, and time range of the res judicata, and the operation of the system also requires the support of many systems and concepts, such as the litigation subject. If you do not grasp the concept of litigation, you cannot apply the system of resolute power. The objective scope of the judgment is directly related to the object of litigation. 〔5〕 Of course, a specific civil litigation system does not necessarily have to be explicitly stipulated by the law, and the system can also be confirmed by jurisprudence. Even if it is not a case law country, passing judgments can also be a judicial practice. This is no longer the case in our country’s judiciary. These judicial practices and jurisprudence usually require corresponding civil litigation theories as a support. For example, with regard to the distribution of burden of proof or burden of proof, there is no clear legal provision in civil law countries. Instead, it relies on the general theory of burden of proof or distribution of burden of proof. However, in China, since the judgment has not been institutionalized and extensively publicized, it is impossible to form an effective legal precedent guiding mechanism. Civil litigation theories do not have the role of guidance and support. From this level, we can think that China basically has no system of judgment, and if it exists, it only exists in textbooks and theory. In this way, it seems that we can also say that our country lacks the mechanism of maintaining the third party’s civil rights and interests through the system of resolute power.

In this sense, the third party's revocation of the lawsuit is necessary to maintain the third party's civil rights and interests. However, from the perspective of perfecting the system of judgment effectiveness, the system of res judicata is necessary. Therefore, it is inevitable that the system of judgment is ultimately established. Once a system of res judicata has been established, the third party's revocation may be greatly restricted or even superfluous. From the perspective of preventing others from colluding and infringing upon third party civil rights through litigation, the reconsideration of the third party as a retrial cause was reinstated to reconstruct the original judgment [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 that prohibits the repetition of lawsuits, the case has not been barred from being reprobated in cases that have been affiliated with the court but have not yet been effective. Legally prohibited.

〔4〕If the concept of a judgment subject (this concept distinguishes between the factual basis and the legal basis of the judgment article and the judgment); the concept and system of the validity of the judgment; the establishment and entry into force of the judgment; the concept of the force of judgment (The meaning of this concept lies in After the judgment is established, the binding force of the court will be differentiated from the judgement after the verdict comes into force.

〔5〕 In accordance with the traditional theory of res judicata, the resolving power is limited to the object of litigation that has already been referred to. For details on the system and concepts of res judicata, see Jiang Wei, Chief Editor: Civil Procedure Law, Higher Education Press, 2009, p. 347.[6] The main reason is the separation of civil litigation theories from the practice of civil litigation, which makes judges in civil justice judges. Almost none of the instruments directly quote the arguments of the relevant civil litigation theories.

Decisions, rulings, and mediations may be a more appropriate choice. 17) The nature and characteristics of the second and third-party revocation lawsuits The nature and characteristics of the third-party revocation lawsuit help us to better grasp and apply the system in litigation practice. The author's analysis is mainly based on the following perspectives: (1) The second-person revocation complaint is a form of complaint. The complaint is usually divided into confirmed complaints and complaints based on the nature and content of the appeal. . The affirmative action refers to the plaintiff's request for the court to confirm the existence or non-existence of its legal relationship. The complaint of payment refers to the plaintiff's claim to the defendant for payment, and requests the court to make a decision to pay the verdict. The so-called benefits here do not only refer to the defendant’s delivery of the plaintiff’s money or in-kind, but also include the defendant’s performance of the actions required by the plaintiff (as an omission). For example, the defendant is required to perform the obligations determined by the contract. The complaint of formation refers to the plaintiff's request for the court to change or eliminate the legal status (rights and obligations). The litigation is a common concept in the Civil Law Civil Litigation Theory, also known as “the litigation of rights change”. China's past textbooks are often referred to as "change of complaints." The nature of the lawsuit filed by the third party may be classified as a form of complaint. Although the content of the appeal is to revoke judgments, rulings, and mediations among others, the essence is to require that the judgment, ruling, and conciliation statement be changed. Determined legal relationship. This feature is basically consistent with the characteristics of the formation of the complaint. Of course, the third person's revocation of the lawsuit also differs from the general complaint. The general suit is based on the entity's right to request in civil law - the right to request is formed, and the obligation is formed, while the third person's revocation is not directly based on the entity's right to demand, but is the right of procedural law. It is against the court. The claim right in this procedural law is also the object of litigation against which the third party revoked. At this point, it is similar to the litigation object of the retrial appeal.

(2) The second person's revocation of the suit is a special remedy procedure. The procedural nature of the revocation of the third person's suit refers to a kind of litigation procedure, which is a special remedial procedure or a general or usual remedial procedure. Because the third party revoked the lawsuit against the legally effective judgments, rulings, and mediations, considering the stability of the pending referees, the overall third party revoked suits should be procedurally related to the retrial procedure. 〔7〕The old civil procedure law (Meiji 23) had the so-called "fraudulent retrial" system (Article 483), that is, a person who deliberately infringed the rights of a third person through a lawsuit (false suit), a third person The plaintiff in the original lawsuit and the defendant who was the defendant for the retrial may revoke the original judgment by filing a fraudulent retrial appeal. However, this rule was deleted when the Taisho 15 Civil Procedure Law was amended. Some scholars believe that this is a mistake in legislation. Therefore, in the interpretation theory, there are still some people who advocate the application of the retrial procedure. In the case of retrial, it can be regarded as a violation of the law due to lack of agency rights. See (Japan) Mitani Mitsuya: “Legal Principles of Civil Retrial”, Legal Culture Society, 1988 Edition, page 38. A third person who violated or disqualified his ruling in violation of his rights was not involved in the lawsuit because he could not be blamed on himself. The attack and defense methods that affect the decision can be proposed. There is also a similar provision in the Japanese Personnel Procedure Law, that is, a third person whose effectiveness has been extended by judgment may decide to revoke a valid and invalid marriage, divorce, etc. on the ground that it violates the relevant provisions of the civil law. See (Japan) Shin-Tan Kosei: “The Role of Civil Litigation Systems”, with the 1993 version of Fiji, p. 328. This is a special or extraordinary relief procedure. 18) However, the third person withdraws the lawsuit is different from the retrial appeal. The difference is that after all, the third person who revoked the third person is the third person in the original lawsuit, unlike the parties to the original lawsuit. In the original lawsuit has exercised certain litigation rights. Therefore, there is no need to reach the degree of retrial procedure when it comes to the stability of referees. In other words, in the judicial policy, the threshold for the third party to revoke the lawsuit should be lower than the retrial procedure. This is mainly manifested in the fact that the retrial procedure requires a retrial procedure, a “second-order” setup, and the first phase is a review of the retrials. If there are retrial reasons, it will enter the retrial stage of this case. The third person's revoked suit is the same as the general civil lawsuit, and still is the order structure. There is no cause for review. However, the third person revoked suit is not a normal appeal remedy procedure. It is strictly for the third person to revoke the commencement of the proceedings. The request, otherwise, will affect the stability of the legal relationship that has been resolved because of the abuse of the retracted complaint.

(2) The second person's revocation action is an afterthought relief procedure. In China, there are two types of litigation systems that protect the rights of third parties outside the case and safeguard their civil rights. There are two independent claims: the third party and the independent The right to claim a third person. Both systems are systems that protect the legitimate rights and interests of third parties, and are a kind of prior procedural guarantee in comparison with the third party's revocation of the lawsuit. The so-called "ex-ante" here refers to the procedural stage before the case's adjudication and adjudication of the case and the mediation take effect. After this, the procedure for relieving the rights involved in the case is the post-event procedure. The demarcation criterion between pre- and post-event is whether the referee takes effect. In general, the usual relief procedures are ex ante procedures, and ex post relief procedures are special and exceptional. The third person's revoked suit must have certain conditions as a post-care relief procedure, otherwise it cannot be filed. This condition is that the third person has not participated in the lawsuit between others because he cannot be blamed on himself, resulting in his inability to exercise litigation rights in the litigation, and thus cannot safeguard his own legitimate rights and interests. The reason why this system is considered as a post-procedure guarantee is because the establishment of this system is purely for the realization of the parties' procedural rights. If the third party could have participated in a lawsuit between other people who did not participate in the lawsuit because of his own reasons, he could not file a third party's revocation, even if the third party has evidence that the referee or the mediation book is indeed in error. His own legal rights. Emphasizing the parties' procedural rights is considered to be an important feature and trend of modern civil litigation law. In civil law countries, influenced by the concepts of the due process and the concept of litigation philosophy, some scholars have proposed the third wave of procedural safeguards (third wave of civil procedure safeguards), arguing that the development of civil procedures should shift to procedural safeguards, not Pure physical protection. This doctrine firstly revised the objective theory of traditional civil lawsuits from the perspective of teleology, and believed that the purpose of civil lawsuits was to realize the procedural guarantees for the rights of parties, rather than merely to resolve disputes. 19) Procedural Safeguards Theory The establishment of a third party repeal judgment system in the Taiwan region of China [8] In the “Civil Procedure Law” in the Hewan District of China, the third party’s revocation judgment system was placed in the fifth trial and retrial. In the fifth series.

Judging from its legal arrangement, the intention is to show that the third party's decision to revoke the judgment is a retrial, but it is different from the general retrial.

〔9〕The Japanese scholar Inoue Statute published twelve papers on procedural safeguards between 1983 and 1991, systematically expounding the viewpoint of procedural safeguard theory. Prof. Inoue’s procedural safeguard theory elucidates the development trend of the so-called civil procedure, the third wave. This trend reflects five shifts: 1 from heavy results to heavy processes; 2 from focusing on the past to focusing on the future; 3 shifting from focusing on heteronomy to focusing on self-discipline; 4 changing from final to tentative; 5 shifting from absolute normative to legal norms. The relative instrumentality of the specification. The tone is to stress the legitimacy of the procedure and the principal position of the parties. For details on Procedural Safeguards, please refer to Inoue Sanitary: "Theory of Civil Procedure" (this book has collected twelve papers published by Inoue on Procedural Safeguards), published by Fiji in 1991; Koji Komori: "Procedure Safeguards The generation and development of the theory--the latest trend of civil procedure law" contains "The Role of Civil Litigation System". There is a 1993 version of Fei Ge, and the construction of page 321 has direct influence. It can be said that there is no theoretical support for procedural safeguard theory. The theory or understanding that a third person revokes the adjudication system is naturally revolutionary in terms of our current tradition and reality. Judging from our country’s tradition and reality, its litigation concept mainly focuses on procedures that focus on substantive and pure pursuit of substantive justice and substantial truth, and does not focus on procedural guarantees for the rights of litigants. 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 action can be said to be a challenge to the traditional concept of civil litigation, and it helps people to deepen their understanding of procedural justice, the legitimacy and legitimacy of procedural justice.

Of course, we can also interpret it from the perspective of preventing the abuse of ex post facto remedies, that is, if we do not set a reason for non-imputation of the third party and do not participate in the litigation between others, we only provide that there is an error in the entity's judgment or mediation book. , you can file a third person to withdraw the lawsuit, which will lead to the abuse of the right to rescind the third person. This will not only shake the stability of the legal relationship that has been resolved, but will also lead to the third person's litigation system not being able to perform its functions properly. The requirements of litigation economics. Moreover, judging from the scope of the subject matter of the ruling and conciliation statement in the new civil procedure law, which is included in the third party's revoked suit, it seems that the problem of considering post-procedural safeguards does not seem to be perfect, since the ruling and conciliation statement cannot be revoked out of the third. The reason why people did not participate in the lawsuit.

When recognizing a third party's withdrawal of a suit, attention should be paid to the difference between the system and the third party's objection. Although the third-party objection case filed by the third party is also filed by a third person outside the case, and is also based on the maintenance of their own civil rights, the nature of the procedure is essentially different. In 2007, our country partially amended the Civil Procedure Law. One of the main contents was to revise the enforcement system. After the revised civil enforcement procedures, a system of lawsuit against the outsiders was added. Article 24 of the Civil Procedure Law stipulates: “If, during the enforcement process, a person outside the case raises a written objection against the object of enforcement, the people’s court shall review the written objection within 15 days from the date of receipt of the written objection. If the reason is established, the ruling shall terminate the object of the objection. If the reasons are not established, the ruling shall be rejected, and the person outside the case and the party dissatisfied with the ruling and believe that the original judgment or ruling is wrongfully handled according to the trial supervision procedure; In accordance with the provisions of this article, if an outsider’s objection to the execution of the subject matter is not related to the original judgment or ruling, that is to say that the error in execution of the subject is not caused by an error of execution (judgment or ruling), such as In the execution, the specific property of the offender is erroneously used as the subject of the execution judgment. Under such circumstances, outsiders can remedy their own substantive rights by filing lawsuits. The outsider’s objection is the action that the outsider uses to execute the creditor as the defendant (in principle) to the court and asks the court to make a decision not to enforce or rescind the enforcement procedure. The purpose is to prevent or revoke the enforcement agency’s execution of the subject matter.

In addition to the phase of application of the third person's revocation lawsuit and the case against the outsider, the appeal of the outsider was only in the beginning or middle period of the beginning of the decade. The civil procedure law community in China’s Hewan District put forward the so-called new procedure guarantee. It has gradually become a dominant idea, and in recent years, the revision of the "Civil Procedure Law" has basically been guided by this "procedural safeguard theory." The proponent of this concept is Professor Qiu Liangong, who is studying at the University of Tokyo and has taught at the Law School of Hewan University. He proposed that the so-called assault prevention theory and new procedures for safeguarding ideas have gradually become important concepts affecting the civil litigation system in Hewan District of China. For details of the relevant theories, please refer to Qiu Liangong: "Protection of Procedural Benefits", published by the Sanmin Publishing Bureau in 2005.

Limited to the implementation stage, there is no entry into the implementation stage, and there will be no case of objection by the outsider. The enforcement will induce a dispute over the right; the third person will withdraw the suit as long as the original judgment, ruling, and conciliation statement take effect, regardless of the original judgment, ruling, or conciliation statement. Whether to enter the implementation stage can be filed, the main difference between the two lies in: the third person to withdraw the suit is a post-event procedure, and the outsider objection is a pre-procedure. The reason why the outsider objected to the suit is a kind of pre-procedure because the existence of such lawsuit does not involve the premise of participating in another person's lawsuit, and it is an elemental lawsuit. Cases of opposition from outsiders are directly against the disputes of others over their own substantive rights, not against the referee or mediation books between others. Article 204 of the Civil Procedure Law stipulates that "unrelated to the original judgment or ruling may be brought to the People's Court within 15 days from the date of the ruling." This means that the lawsuit is not against the original judgment or ruling, so it is not a Post-relief procedures.

Third, the third party retracts the appeal of the appropriate party on the third party to revoke the appeal of the appropriate party, what kind of plaintiff is to investigate the third party to revoke the plaintiff, the legitimate defendant who should be problem. The issue of the appropriate party is the basic issue of the third party's withdrawal of the complaint.

In particular, the issue of the plaintiff's eligibility for the third party to revoke the lawsuit relates to the important issues such as whether the third party's revocation of the suit is effective and whether it will be abused. Therefore, it must be theoretically investigated.

(1) According to the provisions of the Civil Procedure Law, the plaintiff of the third party revoked the lawsuit, the plaintiff of the third party's revoked suit must be equal to the third party with independent claim right in the litigation and the third party with no independent claim right. Third person. The so-called third party who has the right to independent claims is the person who claims to be independent of the subject matter of the litigation dispute between others, and who participates in litigation between others. A third person who has the right to independent claims is usually because he has the right to request the entity in substantive law and participates in the lawsuit of another person because the request claimed by another person conflicts with the right he has enjoyed, claiming that the person does not enjoy the entity’s Right of request. The so-called third party who does not have independent claim rights means that although there is no independent right of claim for litigation targets between other parties, the litigation result between them has a legally relevant interest, and the person who applies for or informs them to participate in the litigation . The third person who has no independent claim right can be divided into two categories in China's civil procedure law: an auxiliary third person and a defendant third person. An assisted third party is always standing in the party of the plaintiff. Otherwise, it is not an assistant and usually takes the initiative to participate in the litigation. 〔2〕 The third defendant type is the plaintiff and the defendant who face the plaintiff independently and may be liable for civil liability. Usually, the court will include it in the case based on the claim of the defendant, that is, the so-called notification participation. litigation. In a few cases, the third defendant will take the initiative to participate in the litigation to defend against the allegations of the litigant, mainly the defendant. Therefore, the status of the third person is actually in the defendant's position.

In accordance with the intent of the legislator, when a judgment, ruling, or mediation book that has already taken effect between other people harms the interests of a third party outside the case because of an error, the third party may apply for cancellation of the judgment, ruling, and conciliation statement. This kind of relief is because of the judgment, adjudication, and mediation [2] Auxiliary non-independent claimant The third person is equivalent to a participant in a civil law country or region. Since the third person who has no independent claim right in China actually includes a third defendant type, he cannot simply equate a third person who does not have an independent claim right to a participant from a civil law system.

See Zhang Weiping: "Civil Litigation: Expanding", Renmin University of China Press, 2004, page 157. After the book goes into effect, it is an ex post relief procedure and method. A third person who has the right to independent claims, when he is the third person to revoke the lawsuit, fails to participate in litigation between others because he is not blamed on his own, and is therefore unable to claim his rights in the lawsuits of others. Maintain your own civil rights. If there is an independent claiming third party able to raise its own independent claim in the lawsuit of others, the plaintiff and the defendant in the other party's lawsuit will become the defendants of the third party suit. If the third party’s right to independent claims is established, the original plaintiff’s request cannot be established, so that the legitimate rights and interests of the third party who has the right to independent claims can be maintained. Because a third party has the right to request an entity, it is an independent litigation request for the subject matter of the litigation disputed by others, and a third party who has the right to independent claim to participate in the litigation is also involved in litigation by way of indictment. Therefore, In civil procedure legal theory, even if a third party does not participate in the lawsuit, the third party can still claim the rights of others after the other party's judgment, ruling, and conciliation statement take effect. Judgment, ruling, and mediation between others are not binding on a third person in terms of the effectiveness of the judgment. The reason for the provision of a third party system for independent claims is to resolve disputes together and improve litigation efficiency. Therefore, if a third person revoked suit applies to a third person who has the right to independent claim, it means that the third person who has the right to independent claim has one more relief route, which can be directly claimed by the plaintiff and the defendant as the defendant in another person's suit. Rights can also override referee and mediation books between others. The former is an ordinary right remedy procedure, and the latter is a special post-event relief procedure. What should be considered here is whether it is necessary to apply special ex post facto remedial procedures if there are general remedial procedures. Moreover, if the judgment of a person against another person is not binding on the third person himself, whether there is a need to overrule the referee between others is questionable. This issue has returned to the issue of the predatory power of the judgment mentioned earlier in this paper.

In the absence of independent third parties, because there are no three types of independent claims, there are two types—the auxiliary and the accused third—so our analysis will also be based on the third person who has no independent claims. Type is expanded. Since only the defendant-type third talent is likely to bear civil liability, if the judgement that the third person is required to bear civil liability is wrong, then it may also damage the third party’s civil rights. Thus, in the case of a third person who does not have an independent claim right, only the defendant-type third person can serve as the plaintiff for the revocation proceedings and the plaintiff who has revoked the suit. Where there is no third party who independently claims rights, if the third party has participated in the litigation because of the court's notice, the litigant may exercise the litigation rights in the first instance and second instance to safeguard his own legitimate rights and interests. If the first instance fails to participate, the court's judgment makes it liable for civil liability. Theoretically speaking, the third party may file an appeal to revoke the original judgment and send it back to the retrial or require a commutation, and it can also realize the right remedy. However, when the verdict has taken effect, the third person who has no independent claim right may seek relief through the third party's revocation. This situation should be relatively small, or the probability of occurrence is very low, because the third type of defendant participates in the litigation is usually notified by the court. Since it has been notified, if the third party does not participate in the litigation, it can only be their own For this reason, the conditions for instituting a third party to revoke a lawsuit are also lost. In addition, if it is recognized that the third person is actually the defendant's status, the third person may seek remedy by applying for a retrial, and the retrial reason is an illegally absent judgement.

In France, according to the provisions of Article 583 of the French Civil Procedure Law, a plaintiff who files a third person's decision to withdraw his sentence shall first be the person who has an interest in the judgment that requires revocation. Theoretically, the interests here refer to damages caused to the third person by the illegal judgment. 3 Because the third party who bears civil liability is still the party. Even if the first instance did not participate in the lawsuit, the third person has the right to appeal. , Seeking an appeal for relief.

interest. This interest not only refers to the material or property interests, but also to the spiritual interest; 2 Secondly, the plaintiff should be a person who has not participated in the litigation as a party or 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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