Administrative Litigation Vision (V) | Administrative Litigation Third Party

Article 29 of the "the People's Republic of China Administrative Litigation Law" (hereinafter referred to as the "Administrative Litigation Law") stipulates: "Citizens, legal persons or other organizations have an interest in the accused administrative act but have not filed a lawsuit, or have an interest in the outcome of the case., You can apply to participate in the lawsuit as a third party, or the people's court notifies you to participate in the lawsuit. If the people's court judges a third party to assume obligations or impair the rights and interests of a third party, the third party shall have the right to appeal in accordance with the law."

Article 30 of the Interpretation of the Supreme People's Court on the Application of the the People's Republic of China Administrative Litigation Law (hereinafter referred to as the "Applicable Interpretation") stipulates: "The same administrative act of an administrative agency involves two or more interested parties, and some of the interested parties are responsible for the administrative act. If a lawsuit is filed if a person is not satisfied, the people's court shall notify other interested parties who have not filed a lawsuit to participate in the lawsuit as a third party. A third party who has an interest in the outcome of the administrative case may apply to participate in the proceedings, or the people's court shall notify him or her to participate in the proceedings. A third party whose people's court has made a judgment that he has assumed obligations or derogated from his rights and interests shall have the right to appeal or apply for a retrial. If the third party stipulated in Article 29 of the Administrative Procedure Law fails to participate in the litigation due to reasons that cannot be attributed to him, but there is evidence to prove that the legally effective judgment, ruling, or mediation agreement harms his legal rights and interests, he may, in accordance with the Administrative Procedure Law According to Article 90, within six months from the date when he knows or should know that his legal rights and interests have been damaged, apply to the people's court at the next higher level."

According to the above provisions, the third party in administrative litigation refers to citizens, legal persons or other organizations other than the original or defendant who have an interest in the specific administrative act being sued and apply in their own name to participate in or participate in administrative litigation at the notice of the people's court. The third party in administrative litigation has the following legal characteristics:

1. The third party is a participant in the litigation other than the plaintiff and the defendant, and has an independent legal status. The purpose of participating in the litigation is not to safeguard the rights and interests of the plaintiff, nor to safeguard the rights and interests of the defendant, but to safeguard their own independent legal rights and interests;

2. The participation of a third party in the proceedings must be conducted before the administrative proceedings have been initiated and have not been concluded;

3. The third party's participation in the proceedings is by his own application or by notice of the people's court;

4. The third party's participation in the proceedings is based on an interest in the specific administrative act being sued;

5. The third party has the right to raise claims related to the case, which may be different from the claims of the plaintiff or the defendant, or consistent with the claims of one of the parties, and the third party has the right to appeal or retry against the judgment of the case.

According to the relevant provisions of the Administrative Procedure Law and the Applicable Interpretation, when a citizen, legal person or other organization acts as a third party in administrative litigation, it can be divided into a third party who has an interest in the administrative act made and a third party who has an interest in the outcome of the case. At the same time, in the case of adding the administrative organ as the defendant and making it easy to find out the facts of the case, the administrative organ can also participate in the litigation as a third party. In general, the third people in administrative litigation can be roughly divided into three categories:

The third person who has an interest in the administrative act refers to the third person who should have filed an administrative lawsuit but did not sue, thus participating in the lawsuit filed by other plaintiffs. The first paragraph of Article 30 of the "Applicable Interpretation" stipulates: "The same administrative act of an administrative agency involves two or more interested parties, and some of the interested parties are dissatisfied with the administrative act and file a lawsuit, the people's court shall notify other interested parties who have not filed a lawsuit. Participate in the litigation as a third party." The third person stipulated in this article is the third person who has an interest in the administrative act. According to this article, a third party who has an interest in an administrative act must meet two elements: first, it has an interest in the administrative act, including the counterparty to the administrative act and other interested parties; and second, the interested party has not brought a lawsuit, thus participating in a lawsuit brought by others. According to the provisions of Article 27 of the "Applicable Interpretation", if the same administrative act involves two or more interested parties, it is necessary to join the litigation, and the court where the parties have not participated in the litigation shall notify them to participate. Article 28 of the Interpretation of Application stipulates: "When a people's court adds a party to a joint action, it shall notify the other parties. The plaintiff who should be added may not be added if he has expressly waived his substantive rights; if he is neither willing to participate in the proceedings nor waives his substantive rights, he shall be added as a third party, and his non-participation in the proceedings shall not hinder the people's court from hearing and adjudication of the case." Accordingly, a third party in a necessary joint action who is neither willing to participate in the proceedings nor waives substantive rights is a third party who has an interest in the administrative act. Therefore, the determination of the substantive elements of the third party who has an interest in the administrative act can be judged by reference to the standard of the plaintiff in the necessary joint action.

With regard to the third party who has an interest in the administrative act, Article 6 of the Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Housing Registration Cases stipulates: "After the people's court accepts the administrative case of housing registration, it shall notify the following interested parties who have not filed a lawsuit to participate in the administrative lawsuit as the third party: (1) the right holders specified in the housing register; (II) the right holders of the registered objection, correction and advance notice registration; (III) other interested parties that the people's court can confirm." The above-mentioned third person is the relative of the administrative act of registration made by the housing registration authority and has the qualification of plaintiff. Because no lawsuit has been filed, the people's court should be added as the third person.

The third party who has an interest in the outcome of the case refers to the person who has no interest in the accused administrative act and does not have the qualification of plaintiff, but the outcome of the case will have an impact on his rights and interests, which is similar to the third party who has no independent claim in civil litigation. The second paragraph of Article 30 of the "Applicable Interpretation" stipulates: "A third party who has an interest in the outcome of the administrative case may apply to participate in the proceedings, or the people's court shall notify him to participate in the proceedings. The third party whose rights and interests are judged by the people's court to bear obligations or derogate from their rights and interests shall have the right to appeal or apply for a retrial." Different from the third party who has an interest in the administrative act, the third party who has an interest in the result of the case does not meet the qualification conditions of the plaintiff at the beginning. It is only to protect its legitimate rights and interests, simplify the litigation procedure, avoid the litigation burden, and at the same time, it is included in the scope of the third party in order to save judicial resources.

In (2013) Qiongxing Zhongzi No. 169 case, a municipal people's government entrusted an urban construction investment company to carry out the infrastructure construction of a comprehensive development project of an international eco-tourism area, and the two sides signed an agreement. The municipal government issued a land expropriation announcement and signed a land expropriation compensation agreement with the village collective including the village group where villager A is located. Villager A's land is within the scope of expropriation, but Villager A does not cooperate with the inventory confirmation of the young crops. In the case that the municipal government's land department issues a notice to them to clean up the young crops on their own within the time limit and they do not clean up on their own within the time limit, the municipal government will remove the young crops. A brings an administrative lawsuit against the administrative enforcement of the municipal government. At this time, can an urban construction investment company participate in the lawsuit as a third party? First of all, an urban construction investment company is not the counterpart of the government's enforcement action, and the enforcement action does not have any adverse effect on its rights and interests, so it is not a third party with an interest in the administrative action. Secondly, if the court confirms that the enforcement behavior is illegal, because of the particularity of the subject matter of the administrative act in this case, that is, young crops, the court cannot judge to restore the original state, and should judge to compensate for the losses. Unless an urban construction investment company and a municipal government agree that this situation will hinder the implementation of the agreement, otherwise the judgment result of compensation for losses will not affect the municipal government's implementation of the agreement, therefore, in this case, an urban construction investment company does not have an interest in the verdict, and it should not participate in the litigation as a third party.

However, if villager A files an administrative lawsuit based on his disobedience to the land expropriation compensation agreement signed between the municipal government and the village collective, although an urban construction investment company has no interest in the administrative act of signing the land compensation agreement, if the court decides that the land expropriation compensation agreement is invalid or not applicable to villager A, then the municipal government has no right to expropriate the land or the land of A, an urban construction investment company will not be able to carry out project development and construction according to its agreement with the municipal government, which will inevitably affect the performance of the agreement between the two parties.

In the case of (2017) Supreme Law Xing Shen No. 195, the Supreme Court held that the stipulation that "those who have an interest in the outcome of the case may apply to participate in the proceedings as a third party, or the people's court shall notify them to participate in the proceedings" should clearly include at least: (1) the third party is determined, and all possible rights or interests related to the case cannot be the third party; the (II) interest is determined, and not all possible rights and even interests related to the case are interested. Otherwise, it is not only easy to cause improper trial of other disputes in this case and disturb the normal progress of administrative litigation, but also easy to cause the case to be delayed for a long time and affect the stability of relevant administrative legal relations.

The second paragraph of Article 26 of the "Applicable Interpretation" stipulates: "If the defendant should be added and the plaintiff does not agree to the addition, the people's court shall notify him to participate in the litigation as a third party, except where the administrative reconsideration agency is a co-defendant." According to this article, in addition to the law of the reconsideration organ as a co-defendant, the court must add him as a defendant, and other co-defendants who do not agree to the addition shall participate in the proceedings as a third party.

In addition, for administrative organs that were not originally defendants in cases, judicial precedents also give them the qualification to act as third parties in litigation. (2016) In the case of Supreme Law Application No. 2907, the Supreme People's Court held that other administrative organs related to the accused administrative act participated in the lawsuit as a third party, which usually belongs to a kind of simple auxiliary participation. Especially in cases involving approval act, pre-act, auxiliary act, administrative contract and exceeding authority, other administrative organs were allowed to participate in the lawsuit as a third party. For finding out the facts of the case and clarifying legal responsibilities, it is more positive. (2017) In the case of Supreme Law Xing Shen No. 2289, the Supreme Court held that although Article 26, paragraph 5, of the Administrative Procedure Law stipulates that "the entrusted administrative organ is the defendant for administrative acts committed by organizations entrusted by administrative organs", the people's court may allow organizations entrusted by administrative organs to participate in the proceedings as co-defendants or third parties if it is more convenient to find out the facts of the case. In the case of (2018) Supreme Law Xing Shen No. 5313, the Supreme People's Court held that the Liangwu villagers' group should take Qingyuan Municipal Government as the defendant if it refuses to accept the above reconsideration decision and file a lawsuit in the people's court. If Yangshan County Government can participate in the lawsuit as a third party, it will be more conducive to finding out the facts of the case. However, the failure of Yangshan County Government to participate in the lawsuit in the lawsuit does not violate the law. 1. the law. In the above cases, the administrative agency is not the defendant in the administrative litigation, but its participation in the litigation is conducive to finding out the facts of the case and will not adversely affect the parties, so the Supreme Court recognizes that it can participate in the litigation as a third party.

According to the provisions of Article 30 of the applicable interpretation, the people's court shall notify the third party who has an interest in the administrative act to participate in the proceedings. A third party who has an interest in the outcome of the case may apply to participate in the proceedings, or the people's court shall notify him or her to participate in the proceedings. If the people's court should notify but does not notify, or should agree but does not agree, resulting in a third party's failure to participate in the proceedings, it belongs to the party who omitted the necessary participation in the proceedings. According to Article 109 of the "Applicable Interpretation": "If the original judgment omits the parties or litigation requests who must participate in the litigation, the people's court of second instance shall rule to revoke the original judgment and send it back for retrial." In the case of (2020) No. 5 of the Supreme Law Bank Compensation, the Supreme Court held that: Dongfang Municipal Government had previously identified Dao Xi Forest Farm, Huangning Village and Bashuo Village as the right holders of the expropriated land, and the 31 group of Xiaoling Village claimed that part of the expropriated land belonged to it, which would inevitably conflict with the ownership of the expropriated land by at least one of the above three villages, it is bound to infringe on the interests of at least one of the expropriated subjects. 1. the court of second instance does not notify the above three subjects to participate in the litigation, it directly confirms the relevant land ownership dispute, which may infringe on the legitimate rights and interests of outsiders. Therefore, the 1. of the second instance judgment belongs to the omission of the parties who must participate in the proceedings. In this case, the court should notify a third party to participate in the proceedings without notice.

The second paragraph of Article 29 of the "Administrative Litigation Law" stipulates: "If the people's court decides that a third party assumes obligations or impairs the rights and interests of a third party, the third party has the right to appeal in accordance with the law." Similar to the provisions of the Civil procedure Law, "the third party who bears civil liability in the judgment of the people's court has the litigation rights and obligations of the parties", the law gives the third party the conditional right of appeal, and only when the judgment has an adverse effect on it, the third party has the right to appeal. Because the third party is not a litigant in the narrow sense after all, and the original defendant in a different litigation status, should have different litigation rights. One of the purposes of the establishment of the third party system is to reduce litigation and save judicial resources. If the third party's litigation rights are not restricted, the case may be delayed for a long time, contrary to the purpose of the establishment of the third party system. Of course, based on the purpose of the third-party system to safeguard the rights of interested parties, if the judgment is detrimental to the rights and interests of third parties, they should be given the right to appeal.

The third paragraph of Article 30 of the "Interpretation of Application" stipulates: "If a third party stipulated in Article 29 of the Administrative Procedure Law fails to participate in the litigation due to reasons that cannot be attributed to him, but there is evidence to prove that a legally effective judgment, ruling or mediation agreement harms his legal rights and interests, he may, in accordance with the provisions of Article 90 of the Administrative Procedure Law, know or should know that his legal rights and interests have been harmed, apply to the people's court at the next higher level for a retrial." In this regard, the Supreme Court held in the (2018) Supreme Law Application No. 4736 case that the third party who should participate in the litigation but did not participate in the litigation can protect their legitimate rights and interests by applying for retrial, but should meet the following two conditions: first, they did not participate in the litigation because they could not be attributed to themselves; Second, there is evidence to prove that legally effective judgments, rulings and mediation documents damage their legitimate rights and interests. The former can refer to the circumstances listed in Article 295 of the Interpretation of the Supreme People's Court on the Application of the the People's Republic of China Civil Procedure Law; the latter is based on the provisions of Article 29, paragraph 1, of the Administrative Procedure Law. Interests "as the standard.

Citizens, legal persons or other organizations qualified as third parties in administrative proceedings shall have the right to participate in administrative proceedings. There are two ways for third parties to participate in administrative litigation:

The first is that a third party applies for participation, which is decided by the people's court. The third party shall apply in writing and shall state the reasons for the application. If the court decides to add it after review, it shall notify the third party in the form of written notice or written notice, and notify the parties in addition. If, upon examination, it is found that the application does not meet the conditions, the application shall be notified not to be added; if the application is insisted on, it shall be rejected in writing.

The second is the people's court ex officio notice to participate. Ex officio additions are only applicable when the facts of the case cannot be found out and the responsibilities cannot be separated if they are not added. The time for the third party to participate in the administrative litigation shall be after the plaintiff's lawsuit and before the end of the trial of the first instance. If the litigation between others has not yet begun, or the litigation between others has been concluded, there is no question of a third party participating in the litigation. In administrative litigation, as long as the judgment of the first instance is pronounced, the third party may apply to participate in the proceedings at any time, but with the permission of the court. In the second instance procedure, the third party cannot apply to participate in the proceedings. Of course, if the court of second instance considers that the court of first instance has omitted a third person who must participate in the proceedings, it may revoke the original judgment and send it back for retrial.

There are ten expressions about the "third party" in the "Administrative Procedure Law", which involve the scope of the third party, the qualification determination, the way of participating in the lawsuit, the right of appeal, the right of evidence and the right of enforcement. The interpretation of application also has 21 provisions on the third party. In addition to the contents of the above-mentioned administrative procedure law, it also specifically stipulates the right of the third party to apply for retrial, as well as the exchange and determination of evidence after participating in the lawsuit, appearing in court, mediation and compensation.

Judicial practice is complex, different types of third parties have different ways of exercising the right of action, and their attitudes towards litigation are also different. In the face of the problem of the third party in administrative litigation, it is necessary to first determine the interest relationship between the third party and the case, and then determine that it should participate in the litigation in various ways. The third party also has the right to participate in mediation, and has the right to entrust litigation agents, apply for withdrawal, Provide evidence, consult litigation materials, put forward litigation claims, debate, state and appeal; and perform corresponding obligations, such as exercising litigation rights in accordance with the law, observing litigation procedures, and fulfilling effective judgments.