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Part Of The Request Study

Posted on:2015-07-22Degree:DoctorType:Dissertation
Country:ChinaCandidate:Y HuangFull Text:PDF
GTID:1106330467467744Subject:Judicial system
Abstract/Summary:PDF Full Text Request
Partial claim is one of the most difficult problems which puzzled civil litigation’s theory&practice circle in civil law system for a long time. The imbroglio, between the object ofaction theory and the theory of res prosecution, makes the controversy over partial claimsbecome very hard to understand. Partial claims have become a big problem when theycontinuously appear in our practice. So we must make an appropriate response in theory andpractice. From some angles, such as response the requirements of judicial practice, reducingthe parties’ litigation cost, relief enforcement difficultly, implementing essential justice in acase, it is necessary to establish the partial claims system. In this system, it is allowed whenthe prior lawsuit winning and expresses as partial claims. It is the first time that someone hasdoing some panoramic research on partial claims in both theory and practice. This article willanalysis partial claim and practice systematically. Also, this article will select thecontroversial issues and testify them, on the basis of clarifying the definition of the right ofpartial claims. Further, this article will focus on analyzing whether it is forbidden to claimpart of the claim, how can claim part of the claim, and how can limit the risk of this institution,which can help to establish the regulations of the partial claim in civil law.Introduction: the reason why the author wrote this article is the thinking caused by thecomparative law. In japan, the passion that Japanese scholars do research on partial claims islast from1950’s to2010’s.Some scholars even cost several decades doing this study and thenwrote a lot of papers in the form of "Trilogy" or "tetralogy". This thesis would never fadingcharms. In contrast, the scholars in our country do not pay close attention to the study ofpartial claims. This difference between the extraterritorial and our country is caused by thedifferent value pursuit in civil litigation law interpretative theory. In our country, theincreasingly partial claims cases are the practical problem that we can not ignore. The partialclaim which is designed reasonably is a method to realize a fair case. It also conforms to thespirit of the current judicial reform. The comparative research and historical investigation arethe mainly methods in this article.Chapter one,the definition of partial claims. About partial claims, different countrieshave different titles. In Japan, they call it part lawsuit or remains of claims. In Taiwan, it iscalled part lawsuit. Scholars in our country usually call it partial claims. According to the principle of disposition, the bone of contention focuses on remains of claims. There are twoway to definite the extension of partial claims. Frist, analyses some similar concept, such asthe partial claims and repeating prosecution, increasing claims, part-judgment, the interimjudgment, regular indemnity payment. Second, clarify the reason of partial claims, and clearthe boundary of partial claims. The reasons why the parties file an partial claim suit isincluding the experiment lawsuit, unknown the total amount, consider the defendant’sproperty, consider the offset, limit specific expense, subjective omission, objectiveimpossibility, malicious prosecution, based on joint liability, with partially security interest.Summing up the above, we can find that partial claim is indeed a serious matter. It can widelyuse in a lot of ranges. So it is necessary to be specialized research on partial claims.Chapter two, the outside debates on partial claims. The development of partial claims inGermany, Japan and Taiwan is no inconsistent. About partial claims, German scholars holdthe most open attitude. Because after World War I, Germany fell into a inflation which causedcurrency devaluation in economy. However, Japanese take a cautious attitude. Maybe becauseof Japanese character, on the theory of complex, Japanese are not inferior to German. Aftersort out the debates, we can find that the debates in japan are focus on object of action, andthe theory of res prosecution. Since these theories are not perfect and these are introducedfrom Germany, Japanese use these theories very careful to avoid making mistakes. But theyignore that in Germany scholars are taking a very tolerant attitude to partial claims. Germanscholars never hesitate on these theories. In Taiwan, about the theory of partial claims,scholars basically follow the existing research results of Japan.Chapter three, reflect on reality context. Since the self-contradictory theory of object ofaction, and each subject of object of action are difficult to interpret partial claims. It isnecessary to find another way in practice to solve this problem. Through refuting theobjection of “to harm the defendant, the plaintiff accused one yuan each time”,“partial claimswill increase the burden on the courts”,“partial claims result in litigation uneconomic”,positive evidence can be found from the reverse thinking to support the theory of partialclaims. In fact, malicious prosecution and repetitive suits in practice does not exist or is notthat bad. In the context of reality, we can dig out these reasons to allow partial claims for thefollowing reasons: first, it will be proportional to calculate the money of the object of actionand the risk that the parties bear. Second, based on the backward inference method, thejustification of partial claims can be inferred from the theory of joinder of actions. Most of the eclecticisms hold that whether the plaintiff express is one of the conditions to allow him toaccuse for the rest of the claims. But the express could be a subtext, why? Because theexpress plays the role of convey information to the defendant and breaking the object ofaction. Third, the consideration of litigation costs is the most widely and important reasonwhy the parties accuse a partial claim lawsuit. According to analyzing the litigation cost inUSA, Germany and Japan, we can find that partial claim lawsuits countries are all haveproblem of charging exorbitant fee for litigation. This problem also exists in our country.Because in China, with the economic development, with economic development, the object ofaction in a case is more and more big and the litigation cost consumption is also increasing.Partial claims can be used to alleviate this problem. In fact, there is no need to worry aboutallowed partial claims may lead to the trial pressure. For decades, Germany, Japan canstrongly prove that allow partial claim can not lead to abnormal litigation pressure.Chapter four, design on the procedure of partial claims. Because the social transition inChina the demand of lawsuit efficiency is different from the outsides. How to design asuitable procedure to appropriate in reality is a problem must be consider in our country. InChina, taking the theory of express and win a lawsuit is necessary. In this theory we need toallow partial claims conditionally. Under the period of social transition and also at the time ofcarrying out a reform measures, not only should us consider the reform can bring positive side,it must be aware that the measures can be abused as well. So we should design some filteringprocedure to solve this problem. Such as accuse a partial claim should express it; theremaining claims can no long appeal after losing the suit; limit the number of times that theplaintiff suits the remaining claims again; determine the range of the amount of claim in apartial claim case; the parties should be the same person; accuse a partial claims should havesome legitimate reasons. After these procedures, the court should treat partial claims with apositive attitude. Judges should use the interpretation right actively. The judge also shouldtreat the plaintiff with leniency to add their claims. But we should note that small claimsprocedure shall not apply this theory. In such procedural arrangement we can achieve abalance to protect the parties’ benefit and settle disputes in one action. The problems of timelimited efficacy and the offset in partial claims are some special problems which are based onpartial claims. About the time limited efficacy of partial claims, the substantive law scholarsthink that the interruption of the limitation of action can affect the rest of the claims. Becauselimitation of action is based on obliges advocate their rights. Via a lawsuit, obliges clearly express that they are not sleeping on the right. So the similar rights are all should be the scopeof the expansion. While the Procedural law theory doesn’t hold this point. In their opinion, theinterruption of the limitation of action is based on the reason to get the effect of litigationdepartment. It is also based on the determination of judicata. Both of the two points are allowpartial claims, but the Procedural law theory has some contradictory thinking logic. So wetake the theory of substantive law. The judicial interpretation in our country is also takes thistheory. About the offset of partial claims, there are three points: the lateral theory, the insidetheory and the several theories. Both the lateral theory and the several theory are based onconfirm the partial claims. So if the courts take these theories that means they support partialclaims. However, if the courts take the theory of inside, it is hard to judge whether they aresupport partial claims. But if we take the lateral theory, it will expand the scope of theplaintiff’s certification. It will also expand the scope of hearing obligation of the courts. Sodoes the theory of several. So we should take the inside theory when dealing with the offset ofpartial claim.
Keywords/Search Tags:partial claims, object of action, litigation cost, malicious prosecution, settle disputes in one action
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