No third people still in serious trouble

    Abstract:Procedural justice is served to ensure litigation power and the case fairly solve the basis and starting point, be of noble character and high prestige of Lord Denning in his "due process of law" a Book of the first topic is as - keep the purity of the judicial work. However, whether in theory or in practice, the legal concept of the third party without independent claim in the civil action, there are a lot of fuzzy concept, has always been a fierce argument, but, because of the third people without independent claim in litigation rights, the lawsuit status and the judgment result is not unified, caused further complicated the problem. This paper tries to set out from the angle of the lawyer, the system in the litigation practice, how to use the system provides service for the parties in the applicable law, also hope to find the third party without independent claim in case agent in the best entry point, to look on the legal problems in resolving the situation legislation and practice between chaos plays an important role in.
    Subject headings:Third party claim lawsuit witness

   One, foreword
   Lord Denning in his "due process of law" a Book of the "objective" was quoted in the 1935 Edward III Decree No. twenty-eighth: "not to reply by due process of law, to any property and the identity of the owner shall not be deprived of their land or house, be arrested or imprisoned, or deprived of his right to inheritance and life". But, the proceedings of the third party without independent claim system in the legal procedure, the legal problems of many difficult to apply.
   The Civil Procedure Law of China fifty-sixth provisions of the second paragraph: "the object of action of both parties, the third party has no independent claim, but the outcome of the case have a legal interest, may apply to participate in the litigation, or the people's court shall notify him to participate in the proceedings. The people's court third people to bear civil liability, have the rights and obligations of a litigant." For the legislation of the third party without independent claim, has long been controversial in theory, it is because of the legislation is too principle, many problems appeared in judicial practice: 1, the same kind of case is listed as the third party without independent claim is not a recognized; 2, the judge without trial, subjective, abuse the court notice in the column, out of the third party without independent claim; 3, in the direct decision problem, some of the court to make a judgment of the third party without independent claim (deliberately do not distinguish between without independent claim) directly to bear civil liability for the accuser phenomenon occurs;....... The confusion of judicial practice, leading to the third party without independent claim rights are often violated, and, the case in disorderly column, abuse occurs. Around the three aspects, the judges are more divided, scholars and practitioners unable to agree on which is right, the third party without independent claim system has become one of the most controversial issues in civil litigation in China, has not yet formed a unified theory. In the face of such a situation, as an agent ad litem in law, it is necessary to explore the causes and Countermeasures of this problem in theory and practice, in order to maximize the maintenance of the legitimate rights and interests of parties.
   Two, the concept of the third party without independent claim to the problems in judicial practice
   1, several opinions of the third party without independent claim concept
   In academic aspects: legislation on only third people, third people of our civil procedure I terms of legislation changes closely linked to third people, third people of the appellation has experienced from the "action" to "action third". The scholars according to the provisions of the legislation in the early days of the civil procedure law books will be third people divided into "the third party with independent claims" and "the third party without independent claim", this term has been in use ever since. Some scholars said, we studied the classification method of the former Soviet Union, but our language and has the advantages of simple, clear. The scholars think, China's "Civil Procedure Law" classification about third people and the former Soviet Union "Civil Procedure Law" the same classification, is based on the object of action is independent claim as the standard, third people divided into third party with independent claims and the third party without independent claim two large class. The concept of the third party without independent claim, in the civil litigation theory, the so-called third party without independent claim, refers to others dispute between litigation without independent claim, but the result of case with his interests in law, because in one of the parties the proceedings, to protect their own interests. In short, without independent right to request the third party in litigation, the dispute between the plaintiff and defendant, litigation has no independent claim, but the result of case with interests in law, litigation to safeguard their own interests and to participate the plaintiff, the defendant has started proceedings people.
   The relevant provisions of the law: the early years of the Republic, the Supreme People's Court promulgated in 1956 "about the people's courts at all levels of civil trial procedure summary" promulgated in 1979, "the people's court for trial of civil cases (for Trial Implementation)" program system has defined the third party to participate in the litigation problem, but was simply defined as: third people to participate in the proceedings, can merge the trial.
   China's current civil procedure law article fifty-sixth paragraph second provides that "the object of action of both parties, the third party has no independent claim, but the outcome of the case have a legal interest, may apply to participate in the litigation, or the people's court shall notify him to participate in the lawsuit. The people's court shall bear civil liability for the third party litigation rights and obligations". This is our country the law relating to the third party without independent claim only law in the legislation of article, according to the current implementation of the Supreme People's court "opinions on several problems of" sixty-fifth, 66, 162 shall, without independent claim third ginseng v. according to the result of the case and is a legal interest, ginseng V is for and court notice in two ways. As for not clearly defined legal status, only stipulates the rights and obligations of a litigant, but does not have jurisdiction over the case demur; have no right to give up, change the claim or applies for the withdrawal of the suit; sentenced to undertake the civil liability, has the right to appeal; the court summons summons, refused to unwarranted or unauthorized court permitted the midway adjourns court, does not affect the trial of the case.
   Found in the trial practice appeared inconsistent understanding and practice, third people of no independent claim to the Supreme People's court also made several judicial interpretation: (1) the court of the court and the parties dispute subject without directly implicated and has no return or compensation obligations., and the plaintiff or the defendant agreed arbitration or the agreement jurisdiction of the outsider exclusive jurisdiction, or one of the parties in a case, not as the third party without independent claim notify them to participate in the proceedings. (2) the people's court in the trial of the product quality disputes, except for the legal relationship between the original defendant person, evidence has been that it has provided the provisions of the contract or in conformity with the law of the product, or in the case of the parties have not stipulated in the quality discrepancy period protest, or as the consignee has accreditation of product quality, not as the third party without independent claim notify them to participate in the proceedings. (3) the people's court to have fulfilled the obligations or made in accordance with the law of the party's property, and pay the legal relationship between the corresponding outside of price of the people, not as the third party without independent claim notify them to participate in the proceedings. These explain to sum up out several of the substantive law rights and obligations: one is no jurisdiction, two is not the responsibility of third people, three is not directly implicated relationship with the target of the dispute.
   2, existing problems in practice:
   One, "independent claim right" conceptual issues
   The Civil Procedure Law of China using the concept of "the third person" without independent claim, but the concept of "right of claim", "without independent claim rights" concept, at present in our country's civil procedure in textbooks is difficult to find a ready answer. But in practice, the parties, the agent as well as the judge on this issue, mostly in the "right" lawsuit to understand, in the deep thinking this problem, first of all we can think of, "without independent claim", then, is the program or entity without "claim" independent? Is the procedure before trial or sentencing, after all there is no "right" independent? And if there is, is "attached" claim? "Attachment" claim? Or...... , the specific and refers to what?
   Second, without independent claim convicted assume obligations of entities are deviated from the basic principle of civil procedure is not litigation ignore
   Our civil procedure law, the third party without independent claim, is the object of action of both parties without independent claim, but the result of case and he has interests in law already exists in proceedings to join. This to participate in the litigation procedure, not third people by the plaintiff or the defendant kind of prosecution, or by the case of the third people filed a lawsuit against the plaintiff or the defendant manner, but by their own applications to participate in the litigation, or the people's court shall notify them to take part in the proceedings. (in practice is mainly composed of court shall notify them to take part in the proceedings). Whether your application to join, or by the court shall notify the join, the third people do not have the (not to) the defendant, and the court his behavior. So, try to explain the third party without independent claim legal status in litigation or joinder theory is untenable. In fact, not through the lawsuit way into action of third people, and the appeal of a party may not exist "litigation", nor the so-called third v.. So from the "the third party without independent claim", "between the plaintiff and the third party without independent claim" and the defendant's litigation analysis, will appear in violation of the law "principle will not ignore" the trial. Moreover, no civil lawsuit trial, should be no trial object trial, also cannot restrict the judge adjudication. Because the trial of the third person and the plaintiff or the defendant between facts and legal issues, almost no procedure for the parties to observe and control the judge trial procedure, procedure guarantee of third people is very fragile, third people have the right of action and enjoy the right to appeal much degree of discretion to the judge, had to pray justice.
   Thirdly, no problem in the litigation interest independent third person the right to request
   As for other disputes litigation of third party without independent claim, the third people have already started in another lawsuit, not only on the plaintiff, the defendant cannot be on litigation claims, plaintiff and defendant, nor to the third people present lawsuit rights advocate. Because the third party without independent claim, it cannot form a procedural action. Neither the action of procedure, is not on the real action or counterclaim refute. So, no matter which party wins, no independent claim right of the third per capita can not directly benefit from the losing party; correspondingly, in has started litigation (the action), the plaintiff or the defendant may not benefit from the outsider in the entity. However, non litigation cases in the judicial practice, the judgment of third party without independent claim shall bear civil liability cases often occur.
   As to the decision of civil liability and its commitment to independent, such parties in the litigation and not been explicitly given right of action, will cause the proceedings on the fetters. No third people can't obtain independent legal status of independent claim, but the third party without independent claim to the object of action is not an independent claim, in the lawsuit, will assist Party, attached to the original, the defendant, support or help one side, against another, stood the support of the party's position to provide evidence, debate, and to safeguard their legitimate rights and interests. If the decision in the third request to the plaintiff or the defendant, and third people without independent claim, even if third people enjoy a solid defense, control rights cannot claim to independence to each other, therefore, can reasoning -- as long as the judge third people to assume the responsibility of the case, would be obvious to lost in the procedural justice issues.
   Three, Taiwan, USA the system of third party without independent claim
   China's Taiwan region. According to the provisions of the Taiwan Civil Procedure Law Article fifty-ninth, article sixtieth, third people to participate in the litigation shall comply with the following procedures: first, third people should be put forward in the book to the court of appeal. In the book should be written in the litigation, stakeholders and the appeal and the statements in litigation. Second, to participate in the litigation, can put forward to appeal, the appeal or merged with other litigation actions. Third, the court shall provide Certificate in in service to both parties. Fourth, the party for third people to participate in the no objections, it made the debate, the limit. The parties about the application for the order, can put forward counterappeal, but dismissed in the ruling has not yet been determined before, participants can implement action.
   China's Taiwan region without independent claim of the third person as the participants in the proceedings in civil litigation, litigation participants divided into participating in and told to participate in the two kind of voluntary. The participants in the proceedings must have a legal interest of litigation and third people, but also to assist the party and to participate in the proceedings. 1, third people must be the third person other than the parties, namely third people must exist between the litigation and to join the others. A person does not allow both parties and the participants in the proceedings. 2, third people must have the legal interest of the lawsuit. The so-called interest, is that the third legal relationship in private law, likely because of the losing party suffered direct or indirect loss. But the stakes are limited to legal interest. Whether the legal interest, usually have the following standards: A, the court shall extend to third; B, Third People's rights and obligations as a party lost may be affected, such as the guarantor to ensure between man and the creditor litigation; C, third people in the subject of litigation there are certain rights. 3, to participate in the litigation must be in order to assist the party and participate in the. Third people to participate in the litigation purpose is not to put their own independent litigation request, but in order to assist the party.
   To participate in the litigation as to assist the party, his actions of natural subject to certain restrictions, but also to be auxiliary artificial premise. Taiwan civil procedure law sixty-third stipulation: "attend to the aided parties, not winning this lawsuit referee misconduct." This effect, known as the participation effect. Because of this regulation, the interests of the third party may be influenced by the losing party, but third people if the original referee misconduct, is obviously not legitimate. But there are some cases can be an exception: first, participants in proceedings for time limit cannot be used to attack or defense method. Action as the participants are procedural constraints, if attend proceedings has not allowed the new facts or to attack and defense, if still take people adversely the referee, is unfair. Secondly, third people for the acts of the parties can not be used in attack and defense methods. If the parties give up the claim, so that participants can't attack or defense. Thirdly, the parties because of intent or gross negligence in not using the person did not know in attack and defense methods.
   America civil procedure law. The third party system is mainly regulated by the federal rules of civil procedure "" fourteenth. According to the "Regulations" the federal rules of civil procedure in article fourteenth, the defendant will be third people as additional own defendant to their action is conditional, that is to be or can be composed of third parties to the plaintiff's request to take responsibility for all or part of the reason. Third party liability is indirectly from the plaintiff's claim for the defendant. The defendant as the third party plaintiff, cannot claim third party defendant bear direct responsibility for the plaintiff. The defendant to the plaintiff responsibility is the requirement of the third parties on the premise of personal responsibility.
   In America in civil litigation, the status of the third party, so third people to participate in the litigation, known as the third party litigation. It refers to, in has started legal proceedings, the defendant to third people on the claim of responsibility for, the third as a new defendant, after adding the original procedure. Third human nature is appended on belonging to a defendant accused, in law in the known as "the third party defendant", but the defendant in litigation between the original defendant, was known as "the third party plaintiff".
   Once the third party defendant into action, he can not only on the defendant requests originating plea, but, he can also raise defence to the plaintiff originating. In the control of jurisdiction, third parties may also request for any party in litigation. Conversely, if meet the requirements, the jurisdiction of the litigation, the other party may also apply to the third party the direct request. In addition, according to the provisions of the second paragraph of "the federal rules of civil procedure" fourteenth, in case of a defendant, the plaintiff can also put third parties as a defendant in litigation to append to the.
   Obviously, American procedure on the third party system in the strict sense, completely different from the third party system in countries of continental law system. It is the third people, third people have the right and obligation and the like, and the third person to participate in the lawsuit also aims to take responsibility.
   Economy of litigation and justice problem four, relates to the third party without independent claim cases
   Our country establishes the system of the third party without independent claim the purpose of legislation is to realize litigation economy, saving judicial resources. No third people in connection with the legal relationship of the appeal of the independent claim, and the rights and obligations of the parties to determine the action in a lawsuit, without the need to keep the appeal of the defendant to file a new lawsuit, in order to achieve a procedure to solve two or more disputes effect, and to avoid conflicting decisions. If the two legally implicated (such as the formation of the final action relevant legal facts before v. facts) appeal trial separately, but the law has not stipulated the procedure before to after v. what binding (in effect), the different jurisdiction the two procedure, results of trial is not necessarily consistent, even conflict with each other. So, by the same court resolved related disputes is necessary.
   The realization of economic action, reduce the contradictions, is the system with the category and the third party with independent claim, counterclaim, joint action, group litigation in litigation are common objective, third. The unique system rather than having no independent claim to. Moreover, according to the theory of separation of joinder and lawsuit, when joinder may cause delay in the proceedings, the judge may permit a lawsuit main body (not limited to the parties) separation of application or authority of the lawsuit, will merge in certain v. disassembled for separation of action, to be a separate trial, so that the purpose of litigation economy make objective in litigation convenience. This procedure can be out of the way of economic purpose, determines the primary purpose of it is not the system of the third party without independent claim, because the primary purpose can not be out of the way.
   However, provisions relating to the third party without independent claim are too the principle of the Civil Procedure Law of China, ignoring the third party without independent claim as the main proceedings litigation status due. In general, the judgment on both sides of the conflict parties have adjudged force, executive force. Third people to participate in the litigation, third people and the appeal of the party as a defendant in the benefit conflict, confrontation, third people with the independent status of the parties debate, burden of proof, the court will two v. consolidated, the validity of a will in third. The court found the third person shall bear civil liability must be at the same time, endowing the third party with independent status of the parties. However, in our civil litigation, non litigation status independent right of the third party request is only auxiliary party, to transfer to the defendant's claim, the third party without independent claim cannot make action independent of the complaint, can only represent their own behavior to litigation defendants, third people behavior or action and the defendant's conflict.
   Needs to be pointed out is, in this lawsuit structure, decision third people assume civil obligation and responsibility without justification basis. For the protection of local interests, some court abuse of discretion, abuse of column of third party without independent claim, reached the decision field parties to bear civil liability, not giving the third party without independent claim independent status of parties in legislation, becoming law basis of local protection, serious damage to the judicial justice. In this regard, the Supreme People's Court of Law No. [1994]29 not directly implicated relation judicial person explicitly prohibit the people's court, the defendant and the dispute between the parties subject to explain, is listed as the third party without independent claim notify them to participate in the proceedings. The limitation of the third party without independent claim to solve the problem of third party without independent claim, and the court in order to avoid being criticized in local protectionism, to notify the third party without independent claim in litigation and very carefully, in turn, further limiting the application of no independent claim right of the third party system. The results, although before a period of time there have been a lot of precedent judgment of the third party without independent claim shall bear civil liability situation has improved, but in calls to resist protectionism high period, in the judicial practice of the third party without independent claim and reduce the number of. In this way, the system does not give full play to the function of litigation to resolve disputes, realize the lawsuit economy, cannot guarantee the judicial justice.
   Because of the existence of the above problems, as an agent ad litem, in the application of "the third party without independent claim" system, provisions should be fully taken into account the case, in-depth study of the relevant laws and regulations and judicial interpretations and requirements, maximize the interests of the client.
   On the five, the third party without independent claim rights to participate in the proceedings
   Two ways of only third people to participate in the proceedings in the court based on the application and notice to. The court notice to become the focus of controversy in theoretical circles, many scholars agree that notice in the obvious drawbacks, the basic principle of violation of civil action, but how to improve but disagree, some advocates to abolish the means of participation, some advocates to narrow the scope of application of this method.
   Our country establishes the system of the third party without independent legislative purpose is to realize litigation economy, avoid conflicting judgments, but according to the concept and nature of only third people, only third ginseng v. in order to safeguard their own interests, their participation should be the right, but not the obligation, the court should not force the exercise compulsory, notify them to participate in the litigation, and if the third person does not participate in the litigation does not affect the trial of the case, and can be directly sentenced to undertake the civil liability, which is obviously against nature is not only third people, goes against the principle of disposition of the spirit, there is paradox in "don't tell" litigation principle, the author suggests to cancel the the way to participate in the proceedings. In addition, for without independent claim application in third people (including often encountered now in the trial, the defendant's original request additional), only third people apply for participation is in support of a party, to safeguard their own interests, in order to help pre effect, but the legislation in the absence of the prosecution of third parties one case, the court may, on the third powers active direct judgment, namely non litigation judgment, this is the litigation practice blindly pursue lawsuit economic results, leading to the judicial practice of third people out of court for fear less, so as not to apply for participation in his bear responsibility, which seriously hampered the function not only third system.
   The nature of the system, based on the author thinks: 1, as a plaintiff's agent, should consider the case, in determining the litigation period, the processing results of cases with whether there is a legal relationship with third people, to get to the plaintiff. The trial results; 2, as the defendant, should according to the development of the case, to apply for additional third party without independent claim in litigation. Special attention should be given, in the third party without independent claim in litigation, to one's own advantage and adverse to the plaintiff's lawsuit, the first time received the complaint, as soon as possible to determine the additional third party without independent claim application or the mobilization of third party without independent claim to actively participate in the litigation, to avoid the application in court the additional third people (or additional cannot) and loses the best defense effect; 3, as the third party without independent claim agent, because no single third applications for participation is voluntary, he can choose to participate in the litigation, also can choose not to participate in the litigation to case processing, in which to participate in litigation, also can be in accordance with the you will exit procedure, the court cannot summon the court. No single intervention of the third party, play a role in assisting Party in litigation. The so-called assisted in, which means that third people by a statement of opinion, provide evidence and debate activities, support and has another legal relationship litigant party claims. The third people who assisted the party, because two of litigation will have interests in common, two are not opposites in the proceedings in the litigation, but a kind of auxiliary, collateral relationship, but there is a potential conflict of interest between the two, as the auxiliary against a party, third people will be assume corresponding responsibility and the auxiliary side of the legal relationship, to produce a new possible between the two. Therefore, as the third party without independent claim agent, it is necessary and auxiliary, attached with a comprehensive understanding of the case, find the correct their starting point and foothold.
   Six, the conclusion
   To sum up, based on the system of the third party without independent claim as an important system of law subject of litigation in civil litigation in China, because the system has many contradictions and problems in legislation, theory and practice, in the litigation agent, to the third party without independent claim to grasp whether properly, sometimes often can decide the success or failure of the case. This paper tries to set out from the angle of the lawyer, the correct system used in the litigation practice, and how to use the system provides service for the parties in the applicable law, the above viewpoint is biased, the author hopes to find the third party without independent claim in case agent in the best starting point, to look on the legal problems in the current legislative contradictions and practice confusion situation plays an important role in.

   Notes.
   ① [UK] Lord Denning: "due process of law," Li Keqiang, Yang Baikui Liu Yongan, publishing house of law, 1999 November first edition, twenty-fifth pages.
   ② Tan Bing editor: "Civil Procedure Law", Law Press in 1997 September first edition, 180th pages. see Yang Rongxin editor of "changes to the Civil Procedure Law of some basic theoretical issues", Chinese legal publishing house in 2002 December first edition, 204th.
   The chapter wusheng editor: "civil procedure" (Revised Edition), publishing house of law in 2002 January first edition, 184th pages.
   The king Guozheng: "Civil Procedure Law" Peking University press, 2002 July first edition, eighty-third pages

Between the third party without independent claim problem is still very serious, especially posted below