論家事訴訟案外第三人的程序保障

On the Procedure Guarantee of the Third-Party out of the Lawsuit in the Family Litigation

案外第三人是指與本案有利害關係，會受本案裁判結果不利影響的主體。這一概念涵蓋了中國大陸民事訴訟法第56條規定的「第三人」。基於家事訴訟對於身分關係統一性的需求，應將家事訴訟既判力擴張至當事人以外的人；為使判決具有正當性，須予特定的案外第三人以適當的程序保障。中國大陸對案外第三人事後程序保障設置若干路徑，然而這些路徑彼此交疊，給實務操作帶來難處，同時事前程序保障也不到位。其他國家和地區有可資借鑑之處。在捋清中國大陸案外第三人程序保障的事後救濟路徑後，結合事前保障可以設置出立體的家事訴訟案外第三人程序保障模式。

The third-party out of the lawsuit refers to the subject that has interest with the case and who will bear negative effect of the judgment of the case. This concept covers “the third-party” stipulated in article 56 of the Civil Procedure Law of mainland China. Based on the requirement of the family litigation for identity relationship of unity, the family litigation should be expanded to res judicata people outside the party, the third-party shall be appropriate for a specific case of procedure guarantee, so that the verdict has legitimacy. There are several afterwards guarantee to the third-party out of the lawsuit in mainland China. However, these paths overlap with each other and bring difficulties to practical application, while the prior guarantee is not sufficient. We can learn from other countries and regions. After smoothing out the afterwards relief measures of the third-party out of the lawsuit in the Chinese mainland, combining with the prior guarantee to set up the stereo program guarantee mode of the third-party in the family litigation.