依托再审程序构建案外人救济途径——《民事诉讼法》第204条执行中案外人申请再审评析

在执行中对执行标的主张贵体权利救济时，案外人通过申请再审而启动审判监督程序还是通过向执行法院院长“申诉”而由院长依职权审查处理？新修订的《民事诉讼法》及最高人民法院新近公布的司法解释均未作明确规定。在此情况下，改良大陆法系常用的第三人异议之诉、借鉴法国民事诉讼法“第三人取消判决的异议”制度、依托审判监督程序，扩大申请再审的主体范围，构建案外人（有独立请求权的第三人）申请再审而启动审判监督程序的救济途径应是当下的理性选择。

To establish compensational measures for person other than involved in the case with the backing of the retrial procedure： Analyze the system of applying for retrial of the person other than involved in the case during the execution,under the Civil Procedure Law Art. 204

When the person other than involved in the case claims for the remedy of the aims of execution during the execution, should he/she start the procedure for trail supervision by apply for retrial, or let the chief justice review by ＇appeal＇ to the chief justice？ There is no specific provision about this in the new Civil Procedure Law and the new published judicial interpretation by the Supreme People＇s Court. Under this circumstance, it is the rational choice to improve the lawsuit of dissidence by the person other than involved in the case in civil law jurisdiction, borrow ideas of ＇the third party cancels the dissidence of judgment＇ from French Civil Procedure Law, to expand the main subject extent to apply for the retrial relying on the procedure for the retrial supervision, establish the person other than involved in the case （the third party who had the independent claim） starts the procedure for the retrial supervision by apply for the retrial.