Abstract
In order to realize the monetary claims, the enforcement applicant files a third-party revocation action regarding the judgement of a dispute over the construction project contract in a separate case involving the subject matter of the enforcement. Whether the enforcement applicant meets the prescribed conditions for prosecution should be examined comprehensively in terms of the subject qualification, substantive conditions and possibility of sham litigation. As regards subject qualification, the enforcement applicant of monetary claims is neither the developer nor the contractor of the project involved in the case and thus does not have the independent substantive right to the subject matter of the lawsuit.
Collegial panel judges of the Supreme People’s Court for the second instance: Miao Youshui, Luo Dian, Pang Jie (Written by: Luo Dian and Xing Chengpeng, Supreme People’s Court; Translated by: Duan Jing).
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According to the provisions of Article 56 of the Civil Procedurel Law of the People’s Republic of China, if a third party considers that he has the independent right to claim the subject matter of the action of both parties, he shall have the right to bring an action. If a third party does not have the independent right to claim the subject matter of the action of both parties but the outcome of the case will affect his legal interest, he may file a request to join the litigation or the people’s court may notify him to join the litigation. If a people’s court holds a third party to bear a civil liability, such a third party shall be entitled to the rights and obligations as a party to litigation. If a third party as mentioned in the preceding two paragraphs fails to participate in an action, which is not attributed to his own fault, but there is evidence that a legally effective judgment, ruling or mediation statement is entirely or partially erroneous and causes damage to the third party’s civil rights and interests, the third party may, within six months from the day when he knows or should have known that his civil rights and interests have been damaged, institute an action in the people’s court which rendered the judgment, ruling or mediation statement. If, after trial, the third party’s claims are tenable, the people’s court shall modify or revoke the original judgment, ruling or mediation statement; or if the third party’s claims are untenable, the claims shall be dismissed.
Article 292 of the Judicial Interpretations of the Civil Procedure Law provides that “where a third party files a revocation lawsuit against an effective judgment, ruling, or mediation statement of a people’s court, he shall, within six months from the date when he knows or should have known that his civil rights and interests have been damaged, institute an action in the people’s court which rendered the effective judgment, ruling or mediation statement, and provide the evidentiary materials to prove the existence of the following circumstances: (1) The third party fails to participate in an action for reasons that cannot be attributed to his own fault; (2) The legally effective judgment, ruling or mediation statement is entirely or partially erroneous; (3) The errors in the contents of the legally effective judgment, ruling or mediation statement cause damage to the third party’s civil rights and interests.
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Luo, D., Xing, C. (2020). Dalian Deyun Real Estate Development Co., Ltd. v. Dalian Yachen Real Estate Development Co., Ltd. and Dalian Shengxin Construction Group Co., Ltd. (Lawsuits of Revocation by a Third Party)—The Application Conditions for Lawsuits of Revocation by a Third Party. In: Selected Cases from the Supreme People’s Court of the People’s Republic of China. Library of Selected Cases from the Chinese Court. Springer, Singapore. https://doi.org/10.1007/978-981-15-0342-9_24
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DOI: https://doi.org/10.1007/978-981-15-0342-9_24
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