调解在第三人撤销之诉中的适用

Application of Mediation in the Withdrawal of the Third Person

第三人撤销之诉是我国2012年《民事诉讼法》修改后新确立的一项诉讼制度,一方面该制度既不同于普通之诉,也与上诉审及再审等司法救济途径存在着实质性差异,这些差异使调解在第三人撤销之诉中的适用面对着诸多理论障碍和争议;另一方面,结合我国司法实践来看,由于目前关于第三人撤销之诉的规定过于简单,法院在第三人撤销之诉中对于当事人提出的调解请求存在着不知如何处理的尴尬局面。尤其是在我国目前过于强调调解的司法背景下,调解的适用显然是第三人撤销之诉在司法运行中不能回避的重要问题,因此需要从解释论的角度就调解适用于第三人撤销之诉的正当性、对象及适用特点等进行深入剖析和阐明,以期推动调解制度在我国第三人撤销之诉中的规范运行。

The withdrawal of the third person is a litigation system established in the new revised ＂Civil Procedure Law＂in China in 2012. On the one hand,this litigation system is different from the ordinary legal action,and there are also substantive differences among withdrawal of the third person,the appeal trial and the civil retrial procedure,all of which make the application of mediation in the withdraw of the third person has many own characteristics. On the other hand,combined with the judicial practice in the mainland of China,because current regulations about the withdrawal of the third person is too simple,the court is in the dilemma when a party puts forward a request for mediation,especially in the judicial context that our country emphasizes too much on mediation at present. The application of mediation in the withdrawal of the third person is apparently an important issue that can not be avoided in the judicial operation. Therefore,the issues related to the mediation in the withdrawal of the third person are especially needed to be analyzed and clarified,mainly based on the theory of objective interpretation,to make the mediation in the withdrawal of the third person in the good operation.