論我國民事訴訟特殊救濟程序的構建

Research on the Establishment of Special Remedies Procedure in Civil Procedural Law of China

當前我國民事訴訟中的特殊救濟程序包括再審之訴、案外人申請再審、執行異議之訴、第三人撤銷之訴等程序，但由於實踐中對特殊救濟程序的目的、性質和特徵的認識存在一定程度的誤解，致使特殊救濟程序在制度上呈現一般化、普通化之特徵，帶來終審不終、司法權威受損、程序空轉、訴訟成本增加、無責任者擔責、濫用訴權等實務層面的問題。特殊救濟程序的本質在於其是特別的救濟程序，具有“特殊性”與“救濟性”，在程序設置時應遵循權利救濟論、程序保障論、利益衡量論等基本理論。《民事訴訟法》在今後修正時，應當通過對特殊救濟程序進行專章規定，根據特殊救濟程序應當遵循的原理，對現有程序進行有針對性地優化，不斷推動中國式民事訴訟特殊救濟程序現代化。

The current special relief procedures in civil litigation in China include retrial, application 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 special 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 China proposed to improve the fair law enforcement and judicial system and mechanism, ensure that all aspects 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 design 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 improve 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 profound theoretical value and practical significance for promoting the modernization of the rule of law in Chinese 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 protect the substantive civil rights of the parties. The theory of procedural safeguards emphasizes the implementation 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 procedures 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.