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Daqian International Enterprise Co., Ltd. (Hong Kong) v. Yu Qiumin and Haimen Daqian Thermoelectricity Co., Ltd. (A case regarding dispute over action challenging the judgment )
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香港大千国际企业有限公司与于秋敏、海门市大千热电有限公司第三人撤销之诉纠纷案
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Daqian International Enterprise Co., Ltd. (Hong Kong) v. Yu Qiumin and Haimen Daqian Thermoelectricity Co., Ltd. (A case regarding dispute over action challenging the judgment )
香港大千国际企业有限公司与于秋敏、海门市大千热电有限公司第三人撤销之诉纠纷案
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| Daqian International Enterprise Co., Ltd. (Hong Kong) v. Yu Qiumin and Haimen Daqian Thermoelectricity Co., Ltd. (A case regarding dispute over action challenging the judgment) | | 香港大千国际企业有限公司与于秋敏、海门市大千热电有限公司第三人撤销之诉纠纷案 |
| Supreme People's Court of the People's Republic of China | | 中华人民共和国最高人民法院 |
| Civil Ruling | | 民事裁定书 |
| No. 1045 [2016], Civil Petition, Supreme People's Court | | (2016)最高法民申1045号 |
| [Judgment Abstract] | | [裁判摘要] |
| The action challenging the judgment by a third party is litigation instituted against an effective judgment. On the one hand, it provides the third party who does not obtain procedural protection for failure to participate in the litigation for some reason but is possibly restricted by the effective judgment with remedies; and on the other hand, it prevents the lawful rights and interests of the third party from being infringed upon by other's false litigation. Considering the res judicata and legal stability of the effective judgment, in terms of plaintiff's eligibility, the action challenging the judgment by a third party should strictly observe the provisions of paragraph 3 of Article 56 of the Civil Procedure Law. In other words, plaintiff who files an action challenging the judgment must be a third party with independent right of claim in the original case or a third party without independent right of claim, and the third party must satisfy other requirements as prescribed in this paragraph. | | 第三人撤销之诉是针对生效裁判提起的诉讼，一方面是给予因故未能参加诉讼而没有获得程序保障、却可能受到生效裁判拘束的第三人提供救济途径，另一方面则是防止第三人的合法权益受到他人虚假诉讼的侵害。鉴于生效裁判的既判力和法律稳定性，第三人撤销之诉在原告适格性问题上，应当严格遵守民事诉讼法第五十六条第三款的规定，即提起撤销之诉的原告必须是原案的有独立请求权的第三人或者无独立请求权的第三人，并符合该款规定的其他条件。 |
| BASIC FACTS | | |
| Retrial Applicant (plaintiff of first instance and appellant of second instance): Daqian International Enterprise Co., Ltd. (Hong Kong), domiciled in Room C, Floor 23, Rockey Center, No. 315-321, Lockhart Road, Wanchai District, Hong Kong Special Administrative Region. | | 再审申请人（一审原告、二审上诉人）：香港大千国际企业有限公司。 |
| Legal Representative: Zhang Xianming, Director of the Company. | | 代表人：张贤明，该公司董事。 |
| Entrusted Agent: Shi Hongfei, lawyer from Jiangsu Jin Changcheng Law Office. | | 委托代理人：施洪飞，江苏金长城律师事务所律师。 |
| Entrusted Agent: Wang Yue, lawyer from Jiangsu Jin Changcheng Law Office. | | 委托代理人：王锐，江苏金长城律师事务所律师。 |
| Respondent (defendant of first instance and appellee of second instance): Yu Qiumin. | | 被申请人（一审被告、二审被上诉人）：于秋敏。 |
| Respondent (defendant of first instance and appellee of second instance): Haimen Daqian Thermoelectricity Co., Ltd., domiciled in No. 129, Dasheng Road, Sanchang Township, Haimen City, Jiangsu Province. | | 被申请人（一审被告、二审被上诉人）：海门市大千热电有限公司。 |
| Legal Representative: Liquidation Team of Haimen Daqian Thermoelectricity Co., Ltd., which was the manager of the Company; Shi Bin, which was the person in charge. | | 代表人：海门市大千热电有限公司清算组，该公司管理人；施斌，该管理人负责人。 |
| Retrial applicant Daqian International Enterprise Co., Ltd. (Hong Kong) (hereinafter referred to as “Hong Kong Daqian Company”) refused to accept the civil ruling (No. 00010 [2015], Final, HPC, Jiangsu) rendered by the Higher People's Court of Jiangsu Province for the case regarding dispute over action challenging the judgment by a third party between Hong Kong Daqian Company and respondents Yu Qiumin and Haimen Daqian Thermoelectricity Co., Ltd. (hereinafter referred to as “Haimen Daqian Company”), and filed an application for retrial with the Supreme People's Court. The Supreme People's Court legally formed a collegial panel and reviewed the case. At present, this case has been closed. | | 再审申请人香港大千国际企业有限公司（以下简称香港大千公司）因与被申请人于秋敏、海门市大千热电有限公司（以下简称海门大千公司）第三人撤销之诉纠纷一案，不服江苏省高级人民法院（2015）苏商撤终字第00010号民事裁定，向本院申请再审。本院依法组成合议庭进行了审查，现已审查终结。 |
In the application for retrial filed with the Supreme People's Court, Hong Kong Daqian Company alleged that: (1) The original ruling was erroneous in determining that there was no legal interest between the handling result of the original case and the retrial applicant, and the retrial applicant was not a third party without independent right of claim in the original case. The retrial applicant was the shareholder owning all the shares of Haimen Daqian Company and the handling result of the original case made Haimen Daqian Company bear a huge amount of debt for no reason, which obviously damaged the interests of the shareholder, namely, the retrial applicant. (2) Yu Qiumin was plaintiff to the original case and she was also the adopted daughter of the actual controller of defendant to the original case. In order to ensure the normal progress of the adjudication of the case and avoid the appearance of litigation against oneself, the people's court should notify the corporate shareholder of participating in the litigation as a third party. In addition, the loans involved in the original case were handled by Zhang Xianming, director of the retrial applicant. For the purpose of finding out the truth of the case, as the auxiliary third party, the retrial applicant should also participate in the litigation of the original case. Due to the fault of Yu Qiumin, in the trial of the original case, the people's court did not notify the shareholder of participating in the litigation, which damaged the lawful rights and interests of the retrial applicant. Thus, the retrial applicant satisfied the subject requirements for filing an action challenging the judgment by a third party. (3) Even though the retrial applicant did not satisfy the subject requirements for filing an action challenging the judgment by a third party, since the parties to the original case engaged in malicious collusion and sought illegal profits through false litigation, the civil mediation paper in the original case should also be set aside. Therefore, Hong Kong Daqian Company requested the Supreme People's Court to retry the case in accordance with the provisions of item (6) of Article 200 of the Civil Procedure Law of the People's Republic of China.
．．．．．． | | 香港大千公司向本院申请再审称：（一）原裁定认定原案处理结果与申请人无法律上的利害关系、申请人并非原案无独立请求权的第三人是错误的。申请人系海门大千公司的全资股东，原案的处理结果使海门大千公司无端承担巨额债务，明显损害了股东即申请人的利益。（二）于秋敏作为原案原告，同时是原案被告的实际控制人的养女，为确保案件审理的正常进行，避免自己告自己的诉讼表象，人民法院应通知公司股东作为第三人参加诉讼。而且，原案涉及的借款均是由申请人的董事张贤明经手，作为辅助性第三人以查清案件事实，申请人亦应当参加原案诉讼。由于于秋敏的过错导致人民法院在原案中未通知股东参加诉讼，损害了申请人的合法权益。因此，申请人符合提起第三人撤销之诉的主体条件。（三）即使申请人不符合第三人撤销之诉的主体条件，原案当事人恶意串通，通过虚假诉讼非法获利，原案民事解调书亦应当撤销。请求根据《中华人民共和国民事诉讼法》第二百条第六项之规定再审本案。
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