The Research In The Benefit Of Litigation

In the theory system of Chinese civil procedure law, the benefit of litigation is a neglected concept. This kind of neglect enables us not timely solve these new problem: the multiplication of the dispute type, the strengthening of the populace right relief consciousness; the modern new lawsuit emerges one after another, and so on. It is well known, national judicial resources is after all limited, the court is impossible to solve all disputes, therefore, we must establish one kind of filter mechanism, enables the court choose these worthy disputes which can be solved by the national judicature resources. How establishes the evaluation criteria? The benefit of litigation is this kind of standard. The main goal of this article is initially constructs the theory system and concrete system of the benefit of litigation in the Civil Procedure Law. The full text includes five chapters.The first chapter is" the definition of the benefit in litigation ". First, this chapter point out the concept of the benefit of litigation ,it refers, when the civil right and interest of the plaintiff receives the violation or has the civil dispute with the other people, the plaintiff really has essential, also can utilize the actual effect civil action realize the right of action. The benefit of litigation has these characteristics: belongs to the plaintiff; the prerequisite which each civil action must have; the midst and mix of the entity benefit and the procedure benefit; the judgment criterion lies in whether the plaintiff has the necessity and the actual effect in lawsuit. Next, this chapter has analyzed the difference and relation in these close concepts: the benefit and right of suit, the suitable standard about litigant as well as the plaintiff qualification, and so on. Finally, considering the new question in Chinese civil judicature at present, the author has exquisitely grasped the tendency which the benefit of litigation expands in the meaning, the function, the content and the protection. Specially in the function, the benefit of litigation except has the negative function about removing the improper legal action, more importantly has these active functions: the production in new right, the promotion in coming into being the new policy, the safeguard in the constitution right about litigant, prevented the court willfully accepts the case ,and so on.The second chapter is "the essence of the benefit of litigation ". Want to know the essence of the benefit of litigation, first, we must carry the benefit of litigation on the science reasonable localization, and discuss the nature of the benefit of litigation. The localization of the benefit of litigation actually refers which the benefit of litigation is in the substantive law item or in the procedural law item, or is in the both law items concurrently. The author believed the reasonable localization of the benefit of litigation should be: it passes through the procedural law and the substantive law in two domains, is situated between the procedural law and substantive law, and lies in the bridging status between the substantive law and the procedural law. The qualitative of the benefit of litigation, actually refers the question which it is belongs to the right protection qualification, or belongs to the lawsuit qualification. The author believed, the benefit of litigation belongs to one of the lawsuit qualification. This chapter finally has analyzed the essence of the benefit of litigation. Through the demonstration of the relation in the civil action's goal with the benefit of litigation, as well as the theory of benefit balance with the benefit of litigation, the author approves of " the theory of mixing the national and litigant benefit ", namely the essence of the benefit of litigation is the balance and coordination of the national interest and the litigant benefit in the civil action." The mix theory "conforms to the basic spirit of the pluralistic civil action's goal, and corresponds to the intrinsic request of "the theory of benefit balance ".The third chapter is "the theory origin of the benefit of litigation". This chapter mainly analysis the benefit of litigation from the angle of view in the law philosophy (mainly is benefit legal science), demonstrates the principle, the domain and the basis of the benefit balance in the benefit of litigation. The benefit legal science is the theory origin of the benefit of litigation. The concept of the benefit of litigation contained the meaning of benefit balance. Using the benefit balance method in the judgment of the litigation benefit will be able to cause many hard problems to be easily solved. The benefit balance in the benefit of litigation mainly lies in the plaintiff and the country (all taxpayers), between the plaintiff and the defendant, and must persists the reasonable value judgment principle, the benefit balance principle and the legitimate principle. when Judge estimate the benefit of litigation ,he must take the order of benefit, the social mainstream value idea, the community policy, the social effect, the consensus as the judgment basis.The fourth chapter is "the judgment standard of the benefit of litigation ". Because the theory of the benefit of litigation has the high generalizability and abstract, in order to facilitate the court and the litigant can clear about it, and enhance its operation and practice instruction function, we have to stipulate the general judgment standard of the benefit of litigation, as well as the concrete judgment standard which lies in various different type legal action. About the general judgment standard of the benefit of litigation often appears in the denial items. These items have the function of prevented the abuse in the right of suit. Generally speaking, these denial items mainly have: Plaintiff's lawsuit requested does not belong to the court civil manager's item; The plaintiff certainly does not need to realize its own benefit through the court referee; Had other right relief systems and not need lodge a complaint; Between the litigant exists the special agreement which removes the civil action; Existence the legal compulsory stipulation of enjoining from prosecution. But to the concrete judgment standard t of the benefit of litigation, the various countries civil procedure law mostly stipulate it from the angle of litigation type. This chapter exhaustively elaborated the concrete judgment standard and method of the benefit of litigation in different litigation type.The fifth chapter is" the safeguard system of the benefit of litigation ". The benefit of litigation is a basic terminology in the civil procedure law; it involves too many civil procedure law theories and procedures. First, in the prosecution system, the Chinese civil procedure law set the entity judgment condition into in the prosecution condition, raised the threshold which the lawsuit started. The reform direction of Chinese civil prosecution system is changing the prosecution substantive examination to the form examination. The benefit of litigation belongs to the lawsuit condition, but not to the prosecution condition, in other words, the balance and judgment of the benefit of litigation should be after the case accepts. Therefore, in the legislation, we must remove the benefit of litigation from the prosecution condition, but request the prosecution condition only in the form. Next, about the investigation of the benefit of litigation, the benefit of litigation essentially has manifested the balance in the nation, the plaintiff and defendant, it both involves the public welfare, and the private benefit between the plaintiff and the defendant, moreover, it is the mix of procedure benefit and entity benefit, therefore, about the fact and evidence investigation in the benefit of litigation, not only can use the debate principle, but also the pure authority inquiry principle, must turn to running after the both "harmonious". Finally, in court manager system, because the benefit of litigation was deciding the court responsible scope, both scopes should tend to consistently; the benefit of litigation and the jurisdiction are in the dynamic mutual adaptation process, therefore, in order to strengthen the safeguard of the litigant, we must do well in the establishment for the court manager standard, the strengthened jurisdiction which can promotes the realization in the benefit of litigation for litigant, endowing the new lawsuit of "the developing f right" with the benefit of litigation, the expanded civil manager scope.