On The Effect Of Judgment

China is establishing rule of law, which requires research and regulation on the effect of judgment. This thesis will study the theory of effect of judgment and recommend the legal provisions on this aspect, which will fit the circumstances of China. This kind of research will not only contribute to the development of jurisprudence of procedural law, but also protect the supremacy and finality of judgment by related institutions in practice.Concerning methodology, historical and comparative study will be used. The main objects will be the Roman law, Civil law and Common Law.There are 9 chapters in this thesis. Beginning with brief historical review, the author will analyze the value of effect of judgment, and the formal effect and substantial effect of civil judgment. After that, will be the comparison between the two legal systems concerning the object extent and subject extent of effect of judgment. Then, the provision concerning breaking and overruling the effect of judgment between the two legal systems will be examined. At the end, the author will construct the theory of effect of judgment for China and recommend legal provisions for related institutions, which will be based on the existing theory and practice in China.Chapter One: Introduction. In this chapter the author will review the theory and provisions of effect of judgment in Roman law. Then, there will be brief summary of the theory of effect of judgment in civil law tradition and common law tradition, and comparison between the two legal systems.Chapter Two: Value analysis on the theory of effect of judgment. Reasons will be discussed that why the two legal systems recognize the finality of effective judgment so that the parties generally are not allowed to contest the issues which already had been decided. The values may be as followings: to ensure the supremacy of judicialpower of the government; to ensure the finality of law; the requirement of judicial economy; to settle the disputes; the requirement of honest and faithful; the requirement of law and order.Chapter Three: The formal effect of civil judgment. This is a procedure effect after the judgment being announced, not the effect generated by the contents of the judgment. The effect on the courts is called binding effect, while the effect on the parties is called formal determining effect. The binding effect means that once a judgment is announced, the court that made the judgment will be bind by its decision and therefore cannot reverse or alter the judgment arbitrarily. Where the judgment may be corrected or polished the binding effect will be reduced. The formal determining effect means that when a judgment is final the parties cannot appeal to the upper court for reverse or alter the judgment.Chapter Four: The substantial effect of civil judgment Part A-Res Judicata. This chapter will discuss the usage, nature, function and starting point of res judicata in the civil law theory. Res Judicata means the general effect of the contents of final judgment. Because most of the experts treat res judicata as procedure issue, it is generally believed that res judicata shall be examined by the court on its own initiative. The function of res judicata is to forbid parties to prosecute again based on the same fact, and the court shall deal with the new action according to the contents of a final judgment, namely the court cannot decide a case different from a final judgment. The counterpart in common law is res judicata, which means a final judgment on the merit of a cause of action or a claim will forbid a second prosecution based on the same cause of action in the same jurisdiction. The difference from the civil law tradition is that in common law, the parties must claim res judicata otherwise the right is treated as waived. Traditionally, res judicata may be divided into two separated and related rules-rule of merger and rule of bar. Additionally, the condition of res judicata is that the judgment must be effective, final and substantial.Chapter Five: The substantial effect...