第三人撤销之诉中的重复诉讼问题探析

An Analysis of the Repeated Litigation Problem in Third-Party Avoidance Claims

我国目前第三人撤销之诉中重复诉讼的判定重点,在于对先后提起的第三人撤销之诉与相关权利确认诉讼之间的先后诉关系的识别。从特质来看,第三人撤销之诉其实质上是第三人依据其享有的实体权利(民事权利)而提出的撤销当事人之间的生效裁判对自身不利影响的诉讼。第三人撤销之诉与相关权利确认诉讼之间有天然联系,两者在本质上属于重复诉讼,只是由于被提起的先后顺序不同,有狭义上的重复诉讼和广义上的重复诉讼之分。第三人先提起第三人撤销之诉,在诉讼过程中或者败诉之后,又提起相关权利确认诉讼时,先后诉属于狭义的重复诉讼,应通过重构诉讼标的理论来彻底解决两诉的重复提起问题;第三人先就其认为享有的民事权利提起确认诉讼,在诉讼过程中或者败诉之后,又以其享有前诉中主张的民事权利为由,提起第三人撤销之诉时,先后诉属于广义的重复诉讼,应采用争点效和诉的强制合并理论来解决两诉的先后诉关系问题。

At present,the key point of determining repeated action in the third-party revocation action lies in the i-dentification of the relationship between the third-party revocation action and the action for confirmation of related rights.From the perspective of the characteristics of the third-party revocation action,in fact,it is an action brought by the third-party to cancel the effectiveness of the effective judgment between the parties based on the substantive rights enjoyed by the third-party.There is a natural connection between the third-party revocation action and the action for confirmation of related rights,and the two are the repeated actions in essence.It is just that the order in which they were brought is differ-ent,so there are two kinds of repeated action in narrow sense and repeated actions in broad sense.When the third-party first brings the third-party revocation action,and then brings the action for confirmation of related rights in the process of the third-party revocation action or after losing the action,the successive actions are the repeated action in narrow sense,and it is necessary to reconstruct the theory of the litigious object to regulate the repeated action;when the third-party first brings the action for confirmation of related rights,and then brings the third-party revocation action in the process of the action for confirmation of related rights or after losing the action,the successive actions are the repeated action in broad sense,and we should adopt the theory of issue preclusion to and the theory of compulsory combination of actions to regulate the repeated action.