Viewpoint... The subject qualification determination and judicial application rules of the third party's withdrawal of the lawsuit.

Published:

2022-03-11

Introduction As one of the three ways to remedy the rights of outsiders, the third party's revocation lawsuit system is a new system established on the basis of the execution of the objection lawsuit and the outsider's application for retrial. Since the system was established by the Civil Procedure Law in 2012, it has played an increasingly important role in trial practice. As the premise and focus of the trial of such cases, the qualification examination of the subject of the third party to withdraw the lawsuit is controversial in theory and judicial practice. 1. of the Civil Procedure Law of the People's Republic of China to determine the subject qualification of the third party to revoke the action According to the provisions of the first and second paragraphs of Article 59 of the Civil Procedure Law, the third party shall have the right to file a lawsuit against the subject matter of the litigation of both parties if it considers that there is an independent right of claim. Although the third party has no independent claim to the subject matter of the litigation of both parties, if the outcome of the case has a legal interest in him, he may apply to participate in the litigation, or the people's court shall notify him to participate in the litigation. The third party who bears civil liability in the judgment of the people's court shall have the litigation rights and obligations of the parties. Thus, the subject of the third party's revocation action includes two types of third parties, namely, the right of independent claim and the right of non-independent claim. Among them, "a third person with an independent claim" refers to a person who participates in the litigation, whether in whole or in part, as an independent entity right holder, in the subject matter of the litigation between others. "No independent claim third party" refers to the subject matter of the litigation of both parties. Although the third party has no independent claim, but the result of the case has a legal interest with it, it can apply to participate in the litigation, or the people's court Notify the person who participated in the lawsuit. Disputes 2. the qualification of ordinary creditors to bring a third-party revocation suit. There is a great deal of controversy in judicial practice as to whether ordinary creditors with independent claims and third parties other than those without independent claims, as stipulated in the Civil Procedure Law, can bring a third-party revocation suit: The view 1. completely negates that The view was that an ordinary creditor could not independently claim substantive rights in respect of the subject matter in the original case and was not a third person with an independent claim in the case. At the same time, based on the relativity and independence of the claim, the creditor has only an economic interest rather than a legal interest in the outcome of the original case, and is not a third party without an independent claim, and does not meet the subject conditions of the third party's revocation of the claim as stipulated in Article 59 of the current Civil Procedure Law. [Bulletin Case] (2017) Supreme Law Minzong No. 319 The main purpose of the decision: the subject of the third party's revocation shall be strictly limited to two types of third parties with independent claims and no independent claims, and the subject of the right to bring a third party's revocation shall not be extended to two types of third parties who enjoy ordinary claims. The court held that the original case was a dispute over the equity transfer contract between Chen Lianying and Jin Hengkun Company, XX Ping and Shen Jinlong. Hu Bingguang and other five people are ordinary creditors who have a private lending relationship with Chen Lianying. First of all, as far as the original case is concerned, that is, the equity transfer contract dispute between Chen Lianying and Jin Hengkun Company, XX Ping and Shen Jinlong, Hu Bingguang and other five people do not enjoy the independent claim right to the litigation object of both parties in the original case, and they do not belong to the third party with the independent claim right stipulated in the first paragraph of Article 56 of the the People's Republic of China Civil Procedure Law. Secondly, no matter how the original case, that is, the equity transfer contract dispute between Chen Lianying and Jin Hengkun Company, XX Ping and Shen Jinlong, the result will not affect the rights and obligations under the private lending legal relationship between Hu Bingguang and other five people and Chen Lianying. Hu Bingguang and other five people, as ordinary creditors who have a private lending relationship with Chen Lianying, have a certain de facto relationship with the original case in terms of whether the creditor's rights can be realized, but this de facto relationship is different from legal interests. As far as the original case is concerned, Hu Bingguang and other five people do not belong to the third party without independent claim as stipulated in the second paragraph of Article 56 of the the People's Republic of China Civil Procedure Law. opinion 2. conditional affirmation In this view, ordinary creditors have the subject standing to bring a third-party revocation suit under certain conditions. The legislative purpose of the third party's revocation lawsuit is to provide relief to the third party who has been infringed by the false lawsuit, and should expand the interpretation of Article 59 of the current Civil Procedure Law to include ordinary creditors in the category of third parties. However, considering that the third party's revocation action is a special relief procedure, in order to prevent the abuse of the right of action, and taking into account the authority of the effective judicial instrument, strict conditions should be set for ordinary creditors to bring a third party's revocation action. Ordinary creditors generally do not have the right to bring a third-party revocation action, but in some special circumstances, if the creditor has the right of revocation against the debtor's related civil acts, there is evidence that the debtor's external litigation is suspected of false litigation, the third-party revocation action may be brought. [Guidance Case] (2017) Supreme Law Minzhong No. 626 The main purpose of the decision: because the rights and obligations of the debtor and others are determined by the effective decision document, resulting in the creditor could not exercise the right of avoidance of the debtor's conduct under Article 74 of the Contract Law (Articles 538-540 of the Civil Code), the creditor may bring a third party to cancel the action. The court held that: looking at the relevant provisions of the current civil procedure law on the relief of the third party who has suffered damage to civil rights and interests, such as the third party revocation lawsuit, the outsider's execution objection and the trial supervision procedure, combined with the practical need of establishing the third party revocation lawsuit system for strengthening the relief of the third party who has damaged the legitimate rights and interests due to false litigation or transferring property through litigation, evading debts and other acts in the revision of the civil procedure in 2012, it cannot be concluded that the civil rights and interests claimed by the guarantee center in this case do not fall within the scope of the remedy of the third party's revocation. Therefore, although the relationship between the guarantee center and Wang Wei belongs to creditor's rights and debts in this case, based on the relationship between the guarantee center's creditor's rights to Wang Wei and the aquaculture plant transferred by Wang Wei, the preservation and enforcement measures taken by the court in the litigation and enforcement procedures for the due creditor's rights transferred by Wang Wei due to the aquaculture plant make the impact on the interests of the guarantee center, as well as the basic facts of this case that the guarantee center claims that the damaged civil rights and interests have obstacles to filing a revocation right lawsuit according to Article 74 of the Contract Law due to civil mediation document No. 183, it can be concluded that Wang Wei and Lu Jinying have a legal interest in the handling result of the dispute over the sales contract with the guarantee center, and the guarantee center has the right to file a lawsuit for revocation by the third party in this case. [Supreme Law Case] (2018) Supreme Law Minshen No. 3403 The main purpose of the decision: Ordinary creditors damaged by false litigation have the right to file a third-party revocation. The court held that the question of whether Ding Jianbing was a qualified plaintiff in the third party's revocation lawsuit had been clarified in the original trial. That is to say, in the original lawsuit, Ruiya Company requested to confirm the invalidity of the Commodity House Sales Contract with Xu Aiyun, which only involved the relationship between Ruiya Company and Xu Aiyun. Ding Jianbing did not put forward an independent claim on the subject matter of the original lawsuit. The subject matter of the original lawsuit and the private loan contract and the guarantee contract involved in the case No. 20 are independent of each other, and have no legal implications, therefore, Ding Jianbing is not a third party with an independent claim, nor is he a third party without an independent claim who has a legal interest in the original case. However, one of the main purposes of the revision of the the People's Republic of China Civil Procedure Law in 2012 to create the third party revocation litigation system is to regulate false litigation. Therefore, in addition to the third party with the right of independent claim and the third party without the right of independent claim, the subject of the third party's revocation of the lawsuit also includes the third party whose civil rights and interests have been infringed by the false lawsuit, and the ordinary creditor whose claim is difficult to realize due to the result of the original judgment also has the subject qualification to bring the third party's revocation lawsuit. In this case, Ding Jianbing applied for pre-seizure of the presale commercial housing purchased by Xu Aiyun, the original party, and obtained a successful judgment. The realization of his creditor's rights is related to whether the pre-seizure property can be realized, and the result of the original judgment may defeat the purpose of pre-seizure. In fact, Raya Company has also filed a separate lawsuit against the execution of the pre-seizure act by outsiders based on the effective judgment of the original case, demanding to block the execution of the property involved in the case. In the case of claiming that there is a false lawsuit in the original case, Ding Jianbing, as a creditor, has the subject qualification to bring a third party to cancel the lawsuit. The expansion of the subject qualification of the third party's revocation lawsuit in the Minutes of the Ninth People's Conference in 3.. Article 120 of the Minutes of the Ninth People's Meeting stipulates that the third party in the third party's revocation action is limited to the third party with independent claim and no independent claim as stipulated in Article 56 of the Civil Procedure Law, and generally does not include creditors. However, the purpose of the establishment of the third party's revocation suit is to remedy the civil rights and interests enjoyed by the third party who did not participate in the proceedings because of the cause that cannot be attributed to him but was damaged by the wrong content of the effective adjudication document. Therefore, the creditor can bring the third party's revocation suit under the following circumstances:(1) the creditor's right is the creditor's right that the law clearly gives special protection, for example, the priority of compensation for construction project price stipulated in Article 286 of the Contract Law and the priority of ships stipulated in Article 22 of the Maritime Law;(2) Because the rights and obligations of the debtor and others are determined by the effective judgment document, the creditor could have enjoyed the right of revocation but could not exercise the debtor's behavior stipulated in Article 74 of the Contract Law and Article 31 of the Enterprise Bankruptcy Law;(3) The creditor has evidence to prove, the contents of the creditor's rights determined in the main text of the judgment document are partly or wholly false. Creditors also have to meet other conditions stipulated in the law and judicial interpretation to file a third party revocation suit. For other claims, creditors may not, in principle, sue for avoidance by a third party. As a result, the Minutes of the Ninth People's Meeting, on the one hand, strengthens the third party with independent claim and the third party without independent claim as the subject of the third party's revocation lawsuit stipulated in Article 59 of the current Civil Procedure Law, and on the other hand, appropriately expands the subject of the third party's revocation lawsuit, bringing creditors in line with specific circumstances into the subject category of the third party. However, in order to prevent outsiders from abusing their litigation rights and affecting the stability and authority of the effective decision, the Minutes of the Ninth People's Meeting strictly limits the subject qualification of creditors to bring a third-party revocation suit, that is, it is limited to creditors who have priority, statutory revocation rights and who are victims of false litigation in accordance with the law. Conclusion The plaintiff of the third party's revocation action should be the third party who did not participate in the original litigation because it could not be attributed to himself, including the third party with the right of independent claim and the third party without the right of independent claim. In principle, ordinary creditors are not protected by a third-party revocation suit, I .e., the ordinary creditors of the original parties are generally not able to initiate a third-party revocation suit as a plaintiff. However, if the parties in the original case collude in bad faith to carry out false litigation, ordinary creditors may, as victims of false litigation, file a third-party revocation suit; in addition, the law clearly provides for special protection of claims, including those with legal priority and those with legal right of revocation, can also be protected by a third-party revocation suit.

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