摘要
当前我国民事诉讼中的特殊救济程序包括再审之诉、案外人申请再审、执行异议之诉、第三人撤销之诉等程序,但由于实践中对特殊救济程序的目的、性质和特征的认识存在一定程度的误解,致使特殊救济程序在制度上呈现一般化、普通化之特征,带来终审不终、司法权威受损、程序空转、诉讼成本增加、无责任者担责、滥用诉权等实务层面的问题.特殊救济程序的本质在于其是特别的救济程序,具有"特殊性"与"救济性",在程序设置时应遵循权利救济论、程序保障论、利益衡量论等基本理论.《民事诉讼法》在今后修正时,应当通过对特殊救济程序进行专章规定,根据特殊救济程序应当遵循的原理,对现有程序进行有针对性地优化,不断推动中国式民事诉讼特殊救济程序现代化.
Abstract
The current special relief procedures in civil litigation in China include retrial,applica-tion for retrial by a third party,objection to execution,revocation by a third party,and other procedures.However,due to a certain degree of misunderstanding of the purpose,nature,and characteristics of spe-cial relief procedures in practice,the special relief procedures have shown a general and universal feature in the system,leading to practical problems such as incomplete final appeal,damage to judicial authority,procedural idleness,increased litigation costs,liability of irresponsible parties,and abuse of litigation rights.The Third Plenary Session of the 20th Central Committee of the Communist Party of Chi-na proposed to improve the fair law enforcement and judicial system and mechanism,ensure that all as-pects of law enforcement and judiciary operate under effective constraints and supervision,and improve the law enforcement and judicial relief and protection system.At present,due to the lack of scientific de-sign in China's civil special relief procedures,there are several practical problems in judicial practice.The research and construction of special relief procedures in civil litigation is necessary to im-prove the judicial relief protection system in China's civil litigation,and it is also the only way to deal with the many practical problems faced by the current judicial system reform.It has important and pro-found theoretical value and practical significance for promoting the modernization of the rule of law in Chi-nese style civil litigation procedures.The essence of a special relief procedure is that it is a special relief procedure,with"particularity"and"relief".When setting up the procedure,basic theories such as rights relief theory,procedural protection theory,and interest balancing theory should be followed.When the theory of rights relief requires special relief procedures in civil litigation,the fundamental purpose or original intention of the design of this type of procedure or system should be clarified first,that is,to pro-tect the substantive civil rights of the parties.The theory of procedural safeguards emphasizes the imple-mentation of a special relief system,which requires effective civil litigation special relief procedures to provide guarantees;the procedural guarantee requires that specific and operable protection mechanisms should be provided for civil substantive rights and civil litigation rights in the special relief procedures of civil litigation.The theory of balancing interests requires that the optimization and reconstruction of special relief procedures in civil litigation should focus on and handle the balance of interests in several key aspects.Therefore,when the Civil Procedure Law is amended in the future,a special chapter should be established to provide for special relief procedures.Based on the principles that special relief proce-dures should follow,existing procedures should be optimized in a targeted manner to continuously promote the modernization of Chinese style special relief procedures in civil litigation.In the future,a systematic construction of a third party relief system should be established.The application for retrial by third parties should be merged with the procedure for revocation by a third party.The key is to rationally position the expected functions and operating principles of various third party relief systems,balance the values of fairness and efficiency,the interests of parties and third parties,pay attention to the compatibility between the trial procedure and the execution procedure,handle the relationship between substantive relief and procedural relief,and improve the specific system of third party relief on this basis.
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