| Summary: | 碩士 === 輔仁大學 === 法律學系 === 105 === The right to be heard is a constitutional fundamental right which is the crucial content of right of instituting legal proceedings. For a third party who is effected by final judgment, if the court does not sufficiently protect his right to hearing, the final judgment has serious defects. Under the circumstances that the right to be heard of the third party is not fully protected, the issue how to grant the party remedial ways will be extremely important. Besides, fraud-based lawsuit/ fraud-based claim is the situation when both parties conspire against the third party. Meanwhile, how to grant the third party remedial accesses is the important issue both theoretically and practically. Accordingly, this article examines the remedial procedure by third party in Taiwan’s Civil Procedure Law, and analyzes remedial procedure by third party and issue of fraud-based suit/ fraud-based claim respectively.
After the revision of Taiwan Code of Civil Procedure in 2003, Taiwan considers revocation action by third party the main remedial procedure for the third party. On the other hand, Japan theoretically but also practically admits that the third party can file the retrial action. Since the two remedial accesses are totally different, this study focus on the retrial action by a third party of Japan and revocation action by a third party in Taiwan. In order to strengthen the protection of the right to be heard, this article analyzes not only theoretically but also practically.
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