不受判決拘束之事後救濟

Relief to Nonparty from an Effective Judgment

不受判決拘束的案外人的權益可能受判決損害，另訴未必能使其獲得救濟。美國也有第三人撤銷之訴，德國的部分案外人異議之訴實為第三人撤銷之訴。美、德、法的不受判決拘束者均可提起撤銷之訴。由於案外人是初次就系爭事項進行訴訟，難以適用我國的再審程序，故案外人的救濟途徑應為第三人撤銷之訴。對判決的撤銷，原則上應是相對撤銷（原判決對其當事人仍有效），但當下只能採絕對撤銷。應當擴大第三人撤銷訴訟的適用主體和適用範圍，放寬損害要件，且設置一般債權人起訴的特別要件，廢棄預決效力的規定。

Nonparty' s not bounding by a judgment doesn' t mean he may not be adversely affected by it. Instituting an ordinarily action can not necessarily give remedy to him. USA and Germany have nonparty's revocation litigation too, and persons not bound by judgment can also lodge this kind of litigation. Nonparty has not litigated on the cause of action, making retrial procedure very difficult to use, so nonparty's remedy should be revocation litigation. Revocation should be relative in principle, but we have to adopt absolute revocation at present. The existing nonparty' s revocation litigation can widely apply to the third party. Legislation institution and the Supreme Court should both devote to perfecting the current law. We should extend the range of application of revocation litigation, permit nonparty lodging suit as soon as suffering danger, abolish evidence requirement of filing litigation, cancel nonparty' s motion for new trial, set up additional requirement for ordinary creditor, discard pre-determined effectiveness of judgment.