论我国行政诉讼中的必须参加诉讼第三人

On the Third Party as Necessary Joint Action Participant in the New Administrative Procedure Law

修订后的行政诉讼法新增了第三人的判断标准,规定了第三人参加诉讼的程序,明确了一审判决遗漏第三人的法律后果。随后出台的司法解释将一审判决遗漏的诉讼主体限定为必须参加诉讼的第三人,必须参加诉讼第三人这一概念由此应运而生。然而,必须参加诉讼第三人究竟属于司法解释对新法的“创制”抑或是“细化”,学界及实务界的立场并不相同。就当前情况而言,单一的诉讼参加程序已无法应对复杂的司法实践,必须参加诉讼第三人作为第三人诉讼参加程序的特殊形态,初露头角。从实定法出发,必须参加诉讼第三人包含三种形态:因无法共同起诉的原告转化而来的必须参加诉讼第三人,权利义务合一裁判下的必须参加诉讼第三人,因无法共同应诉的被告转化而来的必须参加诉讼第三人。

The revised Administrative Litigation Law adds a new criterion for the determination of the third party,stipulating the procedures for how the third party should participate in the litigation,and clarifying the legal consequences of omitting the third party in the first-instance judgment.The subsequent judicial interpretations have limited the subject of litigation omitted from the first-instance judgment to the third party who must participate in the litigation,and the concept of the third party as a necessary joint action participant has come into being.However,as for whether the issue of the third party belongs to the“creation”of a new law or to the“refinement”of the existing law produced by the judicial interpretation,the legal academics and practitioners are divided in their position.As far as the current situation is concerned,a single litigation participation procedure is no longer able to cope with complex judicial practices.The third party who must participate in the litigation as a special form of the third-party litigation participation procedure is coming into being.Viewed from the perspective of positive law,there are three types of third parties as necessary joint action participants:those who are unable to file a joint litigation as co-plaintiffs;those whose rights and obligations are unified;and those who are unable to respond to a litigation as co-defendants.