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First, the legal requirements for retrial Third Party
Third Party Execution Objection System provides for amendments before the " Civil Law" Section 208 , this provision provides a legal basis for the Third Party , but not that the Third Party to have the power to apply for a retrial . " Civil Law" amendment, execution objection raised against the Third Party has some improvement, but still many issues to be resolved , such as: first, the objection is based on the implementation of the Third Party put forward into the implementation phase of the program , but the law does not specify if the judgment already in force, but did not enter the implementation phase, these Third Party could raise objections ; Second , Third Party based on the impact of effective judgment , directly harm the legitimate interests of its own , and the Civil Procedure Law has not been given its right to apply for a retrial ; Third, the lack of legal provisions in the structure of a reasonable set , trial supervision program can be tried on the entry into force of the referee , identify problems, be revoked or changed, but in civil law the provisions of section 204 in place in the implementation of the program.
案外人执行不同的意见制度规定在修改订正前的《有关民法的官司法》第208条，该规定为案外人供给了法律根据，不过并不是觉得案外人就具有了提出请求再审的权柄。《有关民法的官司法》修改订正后，对案外人提出执行不同的意见有一定完备，但仍存好些个问题尚待解决，如：第1，案外人提出执行不同的意见是基于手续进入了执行阶段，但法律未规定假如审理决定已经发生效力，却未进入了执行阶段，这些个案外人能否提出不同的意见；第二，案外人基于发生效力裁判的影响，直接损害到了其本人合法好处，而有关民法的官司法却未给予其可以提出请求再审的权益；第三，法律条文在结构上匮缺合理设置，审理判决监督手续可以对发生效力裁判施行审理判决，发觉问题，予以撤免还是改变，但在有关民法的官司法第204条中将该规定安放在执行手续中。
" Audit Supervisor explained " in section 5 and section 42 also has relevant regulations, but there are some problems with the "Civil Law " has a similar problem , as described in Section 5 , paragraph 1, have not been required to enter the program, the first 2 stipulates how the implementation of the program Wairen relief . But generally speaking , this provision greatly expanded Third Party means of relief , when subjected to the impact of effective judgment or similar violations , through the above remedies , the effective protection of individual legal rights.
《审监注释》在第5条以及第42条中也有有关规则，然而也具有定然成绩，与《官事词讼法》有相似成绩，如第5条第1款也未规则已经经进入施行顺序，第2款规则施行顺序中案别人若何拯救援。但整体说，此规则极大扩展结案别人的拯救援道路，当其遭到相似失效裁判员的反应或者者进犯时，可经过之上拯救援道路，可以保证集体非法权利。
Jurisprudence in the general requirements for res judicata , is its right of litigants or other parties pointed to a corresponding binding on the parties and the subject matter of litigation unrelated to the judgment will not happen on its validity , it has not res judicata . However , the existing limited judicial resources , stakeholder relationships more complex because of the diversity of ways to handle disputes become diversified , based on objective and subjective factors , expanding the scope of res judicata constraints become a practical need . In order to make full use of judicial resources, reduce the cost of justice , to properly resolve the entire dispute , it should expand the scope of res judicata existing constraints . Because the law is imperfect, way to protect their own rights Wairen lacking. However , France is the value of the pursuit of justice . If the Third Party outstanding appeal , have allowed to bear the adverse consequences of the corresponding judgment is clearly unjustified . British Constitution clearly stipulates that citizens have the right to appeal , if on the legal issues in dispute , may request an opportunity to address the court , or make the appropriate referee . Which did not participate in the Third Party proceedings , but the court verdict , the Third Party adversely affected, and the Third Party can provide appropriate evidence of infringement of their legitimate rights and interests , but not their own causes , it should be entitled to nullify the referee right , or is likely to result in the Third Party to protect their rights through other informal means .
Determination of res judicata is to program stability, reduce disputes , but Wairen enjoy right of withdrawal , will largely affect the stability of res judicata . Court referee is to protect the most fundamental rights of the parties , as long as we make more Wairen retrial strictly limited , we can achieve the greatest degree of fairness and justice .
Second, the main problem for retrial Third Party
( A ) the proper subject of the Third Party
Third Party retrial of relevant provisions of the Third Party to determine critical , not all persons other than the parties can apply for a retrial , on the subject should be limited, otherwise the case after the court ruling, anyone can retrial this will affect the stability of the program , reducing the res judicata effect . Whether the principal eligibility , should be considered from the following aspects : First , Third Party certainly can not be a party of the complaint , a person other than the parties , if it did not participate in the proceedings , must be due to factors not attributable to his own . "The Third Man withdrawal of the complaint " in English law has not been specified , for this subject , I believe that the main qualifications should be eligible to apply for a retrial . Secondly, for the implementation of the program has been entered , the Third Party advocates the rights of the subject matter of execution . " Audit supervisor explained ," there are provisions in the program is executed outside the " claim rights to the implementation of the subject matter " is a Third Party retrial of substantial elements , in view of jurisprudence are the following : First, the broad protection of rights , based on the Third Party 's position , whether it is based on property , debt or repurchase rights, etc. , the Third Party may propose an objection ; First, the protection of the rights narrowly , based on the ownership of property , protection of res judicata effect , saving judicial resources , damage to other rights , not to mention opposition . ① Finally, if the Third Party is a necessary co- litigants are missing , the body shall meet the qualification for retrial . " Audit supervisor explained ," the provisions of Article 42 shall be added the need for joint litigants . Therefore, the need for joint litigants should enjoy the right to retrial .
Third Party retrial in the body of the owner of a security right person and per capita usufruct shall eligibility , but there are three main eligibility require some analysis : First , the guarantor . Supreme People's Court judicial interpretation made for the Civil Procedure Law , including the provisions of Article 53 , for the guarantee contract , regardless of the guarantor or the guarantor creditor sued jointly indicted , the people's court shall be the guarantor and the guarantor as a co-defendant . If the creditors do not sue the guarantor , the guarantor has nothing to do with that lawsuit , is not involved in litigation , if the creditor and the guarantor malicious collusion , it may infringe the rights of the guarantor . At this point, the main guarantor shall apply for a retrial eligibility . Second , creditors, based on the debtor through litigation and rights have been infringed . "Contract Law" has a corresponding provisions allow creditors to exercise the right of withdrawal , but subject to certain conditions . If the debtor and the third party in collusion through litigation to make their property to a third person , and the corresponding ability to repay the debtor is greatly reduced , such creditor shall enjoy the right to apply for a retrial . Third, the right person in possession . Tong said that possession is a fact that the actual control on the matter , but some scholars have different views , the right to property that has diversity . ② Based on property , claims arising from the possession, the resulting relationship is protected by law , if not ownership , it will have to bear the responsibility , although the court acknowledged its possession . ③ therefore not entitled to apply for a retrial possessor to Third Party does not meet the qualifications .
( Two ) Wairen out how to apply for a retrial of the parties
In practice, how the identity of the Third Party retrial states that different courts have different approaches , there are listed as co-defendant , Petitioner , no independent right of a third person and so on. " Audit Supervisor interpretation " in the provisions , the Third Party in the retrial proceedings in his own status, will be related to the identity of the parties . Such as: the Third Party is required of the party , but was omitted from the trial , you should append the Third Party is a party , in accordance with the first instance trial ; if in accordance with the second trial failed to reach a mediation should cassation , remand . Third Party co- litigants are not necessary , if after hearing the opposition is justified , then cassation , the court shall inform the relevant parties to resolve disputes re- indicted . Third Party can be stated as follows retrial proceedings position : 1. At the examination stage , you can apply for a retrial of man and the respondent . ④ According to the parties filing the registration or filing review different as Petitioner or Respondent , only for retrial retrial exists. 2 Go to the retrial procedure, Third Party co- litigants are necessary , but the trial was missing , you should add a third person , you can directly as plaintiff and defendant . 3 Third Party is not required of the party , the first instance , it can be classified as a retrial plaintiff , if the second instance , the mediation can be directly classified as the Third Party .
Third, the Third Party 's conditions for retrial
Accordance with the relevant law, apply for a retrial on the Third Party is mainly two cases, one non-executive program Wairen apply for a retrial , and the other one is the execution of the Third Party for retrial. In both cases the Third Party for retrial , similarities exist .
Wairen both cases for retrial , there are two common conditions . First, apply for a retrial is the mainstay of the Third Party . Here's the Third Party is not broadly indicated in addition to the trial judges a person other than the parties , but to the outside in addition to the parties , their legal rights and interests are infringed because the effective judgment of people . Second, the original effective instrument retrial People's Court made on a court , which is in the same area under the jurisdiction of the court .
But according to the "Civil Law " and " trial supervision explain " the relevant provisions , I believe that there is a difference between the following three points .
( A ) if the claim " the implementation of the subject matter " and " implementation of the subject " Different
Non-executive program, the Third Party chief advocate is the subject matter of execution , execution , execution is the subject of the Third Party advocates . "Performing the subject matter " and " implementation of the subject " has a very big difference, perform a wide range of subject matter in the execution of the subject matter , including the implementation of the subject matter . Wairen non-executive program for the implementation of the subject matter can only claim rights , the right to request that only the entity . Based on legislative restrictions , non-executive program Wairen form for declaratory judgment and the judgment does not apply for a retrial .
( Two ) different prerequisites for retrial
Wairen non-executive program is a prerequisite for retrial Wairen not a new action to resolve the dispute , the execution of the program of the Third Party will have to meet a series of conditions for retrial , the first challenge , followed by reasons not established by the Court dismissed last Wairen is dissatisfied that the referee errors for retrial.
This provision may be in the legislation is not perfect, but it can get a good explanation. Originally retrial procedure is different from the usual general procedure for the trial referee error occurred while starting the remedy , if there is any other reasonable relief , you do not need to achieve through the retrial shall first use of other means. In the non-executive program, if possible, a new action to resolve disputes , it can not retrial . Third Party retrial is to safeguard their legitimate rights and interests , to correct trial errors. Even if the trial referee is revoked, the Third Party for the realization of their own interests, must pass a new lawsuit. Therefore , retrial is the last choice, a new lawsuit can solve existing problems, it is not necessary for retrial . In the implementation , in order to improve efficiency, and ensure judicial strength, first mentioned by the Third Party objection may be better addressed. After the court hearing , generally there is no error , the verdict is worthy of trust of the people . Third Party first mentioned re-examination of the provisions of objections , the main stay of execution in order to prevent the Third Party to make a more fair and effective implementation of the court .
( Three ) there are differences deadline for retrial
Non-executive program, the Third Party in the effective judgment may be made within two years after , you can also define their interests after the damage knew or should have known that within three months from . It should be made within two years of the term of the same period ; interest after the damage knew or should have known that within three months from the statute of limitations period should be , because the Third Party in the know right after the damage , within three months , in essentially should belong infringement, no longer belongs to retrial procedure category.
Fourth, foreign Wairen relief
( A ) the third party proposes to abolish the French judgment objections , Taiwan, Macao -based withdrawal of the complaint
The so-called third person to cancel the judgment ruling on the objection refers to the case of damage caused by a third party outside , but there is damage or risk of damage to occur , thereby setting the means of relief . ⑤ third objection is also proposed to abolish the sentence of the complaint is withdrawn . "French New Code of Civil Procedure ," the provisions of Article 582 , the third person of the proposed action , is the third person of my interests are jeopardized , which called for the repeal or revision of judgment content. ⑥ However, the rights of parties related person and its creditors , made their facts and reasons , you can also make a third person objection. Section 587 provides that the decision to cancel the third party objection rights have been violated must apply to the court , the trial judge can be . ⑦ remedial nature is France's third objection decision to cancel the characteristics of the main third party in such a way to prevent infringement caused by their own judgment and the implementation of a means .
English Taiwan " enforce " the provisions of the third objection to the complaint , in the " Civil Law" stipulates that revocation of the third person of the complaint . Civil Procedure Law and the case if there is a third party interest , because of their own reasons not attributable to not be involved in litigation verdict unfavorable to the third person , then you can withdraw the complaint filed . Only relatively mature legislative experience , to make withdrawal of the complaint and the Third Party Third Party objection complaint to coexist.
Macau region, " Macao Civil Procedure Code " requirement , if the parties false legal action , the court was unaware of the rights of the aggrieved third party may raise objections. ⑧ relatively speaking, Macao region Wairen withdrawal of the complaint beyond the applicable range is relatively narrow , and only damage the interests of the Third Party is based on a false behavior occurs when the parties to litigation .
( Two ) , Germany , Japan, South Korea -based third objection complaint
Germany, Japan and South Korea and other places , there are similar provisions in the legislation , the third party may raise objections to the complaint, but the provisions of national legislation are not the same . German civil law, ( a ) for the execution of the subject matter , if the third person has the right to prevent the court from enforcing , you can raise objections to the complaint. ( 2 ) The complaint was raised objections , if it is the same time for the creditor and the debtor , the two should co-defendant .
Germany and the United Kingdom is different, "the Japanese Civil Execution Law" provisions can be sued directly enforceable. Third Party can bring retrial or withdrawal of the complaint , " Japan's new Civil Procedure Law" does not make provision . The current Japanese legislation in Wairen retrial also not perfect.
"South Korean Civil Execution Law" stipulates that a third party may raise objections to the implementation of the complaint . South Korea 's appeal for the third objection provisions essentially similar in Germany .
( Three ) , Italy -based Third Party retrial
At this stage, national legislation on the Third Party retrial mostly involve certain , but the existing regulations are not perfect, nor exhaustive , is still in the exploratory stage. Such as " Italian Civil Code," Article 404 "to make sure because of his human judgment or a judgment of execution violation of the rights of third parties , or because of fraud or collusion suit their own interests to the detriment of the heirs and creditors , was filed against the judgment to determine retrial . " ⑨ Wairen retrial Italian legislation although there are certain requirements , but does not form a more structured system .
Five , the British relief Third Party Perfection
Analysis of the different foreign Wairen legislative relief system to compare the same systems in different settings , the main purpose is to base the UK 's national conditions, the existing systems for improvement and perfection, seeking the most appropriate and effective mechanisms to protect the legitimate interests of the Third Party .
( A ) English Wairen retrial lacunae
( 1 ) applies to a lesser extent . Under the existing law, in the implementation of the program , the Third Party can raise objections object is " implementation of the subject ." Third Party retrial is only paid content effective judgment , the judgment did not form a judgment and confirmation payments content , there is no implementation of the subject matter , said. In the long run , the formation of judgments formed force , confirmed the judgment confirmed the effect of res judicata are likely to Wairen produce expansion. Therefore , expanding the scope of the Third Party retrial have a great necessity .
( 2 ) expansion of judicial interpretation interpretation . " Audit supervisor explained ," made for a retrial on the Third Party than "Civil Law " a wider range of regulations, " explained the trial prison " based on " Civil Law" Wairen expanded beyond the program proposed in the non- implementation of the right to retrial . From the legal point of view can be considered that the expansion of judicial interpretation is explained , " explained the trial prison " can not expand the scope of the original law .
( 3 ) does not explicitly retrial procedure . For Third Party retrial , how to use the program, legal and judicial interpretations were specified. Thus, the Third Party can only refer to the parties apply for a retrial retrial procedure, but after all, there are many Third Party with different parties , the Third Party has its special features , for the retrial court level , the main eligibility , restrictions , and many other applications with the parties retrial were different , the relevant legislative provisions should be made to be perfect .
( Two ) perfect English Wairen retrial system
( A ) apply for a retrial of the subject matter . English is the second instance to implement a system of Final Appeal , and the Third Party for retrial belong auxiliary program , play a complementary role . Apply for a retrial of the subject matter must be strictly limited, subject matter , the more difficult it upheld the validity of res judicata , the second instance will not be final . At this point , whether it is France, Germany and other countries have similar provisions , although the provisions of the same failure , but there are common: 1 . Wairen legitimate interests damaged because trial judges ; 2 . Wairen should participate in the proceedings but not to participate ; 3 . did not participate in the proceedings themselves reasons not to go .
According to the British "Civil Law " and " trial supervision explain " requirement , the paper first introduces the British Third Party chapters apply for a retrial of the case , the party not involved in the Executive Program for retrial , there are also non-executive program Wairen apply for a retrial , and there are certain conditions . Although the regulations have some differences, but the subject matter of the application for retrial , it can unified standard . I believe that in future legislation , we may learn the relevant excellent experience, the provisions of the Third Party grounds legitimate rights and interests affected the trial referee damaged , referring to the parties apply for a retrial.
( 2 ) expand the Third Party participate in the proceedings . The Third Party did not participate in the proceedings , resulting verdict legitimate interests of the party not involved damage to the case for possible cases of organizing the investigation , so that the Third Party to understand the case , giving the Third Party put forward their own views on the right , you can sit in the Third Party while investigating the merits of the evidence against the Third Party , to avoid damage to legitimate interests of the Third Party .
( 3 ) create a third person withdraw the complaint . France, Taiwan has a good legislative experience , learn from the United Kingdom should be appropriate , although the current law Wairen set for retrial , but it can also apply to third parties withdraw the complaint . Withdrawal of the complaint by the third person , you can not start the retrial procedure , not only to protect the legitimate interests of the Third Party , also reduces the waste of judicial resources .
Epilogue
Third Party retrial system is to protect the interests of the United Kingdom legislation on Wairen significant progress, has an extremely important significance , but legislation set too brief relief for Third Party is still not perfect . Living in the British judicial environment, combined with the British situation , learn from foreign advanced legislative system , to establish a better Wairen remedies have great necessity . English Third Party retrial system faces many problems in theory and in practice , still need to improve their systems , the task remains to be done .
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