論民事訴訟中的第三人撤銷之訴
發(fā)布時間：2019-01-09 16:13
【摘要】：隨著司法實踐的發(fā)展和人們對訴訟規(guī)律認識的加深,面對越來越多的利用本訴侵害案外人利益的現(xiàn)狀,第三人撤銷之訴作為保護案外人利益的專屬制度和維護司法裁判穩(wěn)定性、權威性的“防火墻”,被2012年民事訴訟法修正案作為一項訴訟制度確立下來。 縱觀各國特別是大陸法系國家的民事訴訟立法,不僅存在再審型的第三人撤銷之訴或獨立的第三人撤銷制度,并且在德國、意大利等國家以特別法的方式對其明文規(guī)定,對提起的事由也作出了相關規(guī)定。各國的第三人撤銷之訴提起的要求大致是對于本訴存在訴訟利益,但由于不可歸責于自身的事由未參加本訴。國外和我國的臺灣地區(qū)的相關制度對我國第三人撤銷之訴的司法運作有重要的借鑒價值。 第三人撤銷之訴的設定,關涉訴訟的公正與效率,關涉司法裁判的穩(wěn)定性、權威性與利益相關方的正當權利的保護,關涉法的安定與正義的沖突及取舍,蘊含著深刻的訴訟理論和哲理。第三人撤銷之訴與法的形成力與既判力存在著此消彼長的關系,第三人撤銷之訴正是為了防止判決效力的擴張。為在判決的正當性和既判力之間尋求平衡。 在我國,市場經(jīng)濟的繁榮發(fā)展,各種產(chǎn)權形式重組,導致權利狀態(tài)難以知曉,這就為當事人雙方惡意串通、虛假自認侵害案外人利益滋生了土壤,為了抑制當事人作出的侵害案外人利益的行為,應盡快制定相關的司法解釋明確第三人撤銷之訴提起的主體、管轄的法院等以期提升司法公信力,取得雙贏效果。同時,我國法院審級利益的沖突、本訴當事人與案外人利益的沖突等必然會造成以后適用過程中的困難,只有最大程度將第三人撤銷制度明確化,減少該制度成為“休眠條款”的可能性,才能做到真正地保護案外人利益。
[Abstract]:With the development of judicial practice and the deepening of people's understanding of the law of litigation, in the face of more and more exploitation of the interests of the outsider in this case, the third party cancels the suit as the exclusive system to protect the interests of the outsider in the case and to maintain the stability of the judicial judgment. The authoritative firewall was established as a lawsuit system by the amendment of civil procedure law in 2012. Throughout the civil litigation legislation of various countries, especially in the civil law system, there exists not only the retrial third party revocation action or the independent third party revocation system, but also the special law in Germany, Italy and other countries. Relevant provisions have also been made for the reasons mentioned. The request of the third party to withdraw the lawsuit in various countries is that there is litigation interest in the suit, but it does not take part in the suit because of its irresponsibility. The relevant systems in foreign countries and Taiwan have important reference value for the judicial operation of the third party's revocation. The establishment of the third party's revocation action is concerned with the fairness and efficiency of the lawsuit, the stability of the judicial decision, the protection of the authority and the legitimate rights of the interested parties, the conflict between the stability of the law and the justice, and the conflict between the justice and the law. It contains profound litigation theory and philosophy. There is a relationship between the forming force of the third party's revocation and the res judicata, and the third party's revocation is in order to prevent the expansion of the validity of the judgment. In order to find a balance between the legitimacy of the judgment and res judicata. In China, the prosperous development of the market economy and the reorganization of various forms of property rights have led to the difficulty of knowing the state of the rights. This has created a soil for the interests of outsiders in the case of false self-admission as a result of malicious collusion on the part of both parties. In order to restrain the behavior of infringing the interests of the outsider in the case, the relevant judicial explanation should be made as soon as possible to make clear the subject of the action of the third party's revocation, the court of jurisdiction and so on, in order to enhance the judicial credibility and obtain the win-win effect. At the same time, the conflicts of the interests of the courts and the interests of the litigants and the outsiders in the case will inevitably lead to difficulties in the process of application in the future. Only to the greatest extent will the system of revocation of the third party be made clear. Only by reducing the possibility of the system becoming "dormant clause" can we truly protect the interests of outsiders in the case.
【學位授予單位】：安徽大學
【學位級別】：碩士
【學位授予年份】：2014
【分類號】：D925.1
本文編號：2405852
[Abstract]:With the development of judicial practice and the deepening of people's understanding of the law of litigation, in the face of more and more exploitation of the interests of the outsider in this case, the third party cancels the suit as the exclusive system to protect the interests of the outsider in the case and to maintain the stability of the judicial judgment. The authoritative firewall was established as a lawsuit system by the amendment of civil procedure law in 2012. Throughout the civil litigation legislation of various countries, especially in the civil law system, there exists not only the retrial third party revocation action or the independent third party revocation system, but also the special law in Germany, Italy and other countries. Relevant provisions have also been made for the reasons mentioned. The request of the third party to withdraw the lawsuit in various countries is that there is litigation interest in the suit, but it does not take part in the suit because of its irresponsibility. The relevant systems in foreign countries and Taiwan have important reference value for the judicial operation of the third party's revocation. The establishment of the third party's revocation action is concerned with the fairness and efficiency of the lawsuit, the stability of the judicial decision, the protection of the authority and the legitimate rights of the interested parties, the conflict between the stability of the law and the justice, and the conflict between the justice and the law. It contains profound litigation theory and philosophy. There is a relationship between the forming force of the third party's revocation and the res judicata, and the third party's revocation is in order to prevent the expansion of the validity of the judgment. In order to find a balance between the legitimacy of the judgment and res judicata. In China, the prosperous development of the market economy and the reorganization of various forms of property rights have led to the difficulty of knowing the state of the rights. This has created a soil for the interests of outsiders in the case of false self-admission as a result of malicious collusion on the part of both parties. In order to restrain the behavior of infringing the interests of the outsider in the case, the relevant judicial explanation should be made as soon as possible to make clear the subject of the action of the third party's revocation, the court of jurisdiction and so on, in order to enhance the judicial credibility and obtain the win-win effect. At the same time, the conflicts of the interests of the courts and the interests of the litigants and the outsiders in the case will inevitably lead to difficulties in the process of application in the future. Only to the greatest extent will the system of revocation of the third party be made clear. Only by reducing the possibility of the system becoming "dormant clause" can we truly protect the interests of outsiders in the case.
【學位授予單位】：安徽大學
【學位級別】：碩士
【學位授予年份】：2014
【分類號】：D925.1
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