Research On Res Judicata

Jipanli(res judicata) is a word in civil law system which is difined by most scholars as determinative force of a judgment. In common law system it is called res judicata. It includes two aspects: the parties are not permitted again to sue on the same subject matter determinated by the judgment on one hand; on the other hand the court is not permitted to give a new judgment that contradicts to the former one. Res judicata is the basic nature of judgments given by authorities , which means any judgements include this inner request. Res judicata has an existence in criminal judgments, adminstrative judgments or civil judgments inevitably so far as they are final judgments of solving disputes. Close relation exists between res judicata and retrial system. The current retrial system in PRC is a never-ending one which makes judgments having no res judicata. This dissertation aims at a systematic research on res judicata which is good to building res judicata, also good to the design of trial grades and retrial system in PRC in the future..One of the key points of this dissertation is that res judicata belongs to the field of procedural law in essence, the source of which is the judicial power of the state, but it is also of substantive nature. The foremost values of res judicata are the demands of building judicial authority and maintaining invariability of law, which are realized by its positive function and its negative function. Res judicata has effects not only on parties, courts, judges, but also on third parties. Res judicata mainly exists in final judgments. Rulings and mediations in civil litigation have res judicata in some aspects or in some degrees. The interim judgments have no res judicata. The range of action of res judicata such as the time scope, the subjective and the objective scope, or the effects of ratio decidendi are technically legal norms in need of research. In general, final judgments have res judicata. Exceptionally, res judicata has to be removed. The main method to remove res judicata of a judgment is retrial. How to balance the values between the invariability of law and the justice of a certain case is the main consideration of the design of res judicata and retrial system.Based on the theory of res judicata, the author puts forward some suggestions and propositions on rebuilding our trial grades and retrial system in the future. It is held by the author that generally trial grades system in PRC should include three grades and the third instance as the final one. In some special circumstances restricted retrial is permitted. In civil litigantions the system of the orinal or the second instance may be as the final one supplementally considering some particular cases.The contribution of this dissertation involves four aspects. First, this dissertation is the first systematic research on res judicata in PRC. At present there are lots of articals and dissertations of research on res judicata in PRC, and achievements are also obtained. But no systematic research on res judicata is found. From the angle of systematic research on res judicata, this dissertation is original. Second, the research of this dissertation on res judicata is also initial in the field of jurisprudence. The domestic research on res judicata by far is confined to procedural law. It is scattered in the domain of branch laws, such as the research on civil res judicata, adminstrative res judicata or criminal res judicata. There is a need of research on res judicata in general and in jurisprudence. The research on res judicata from the angle of jurisprudence which is not confined to branch laws or procedual laws is original. Third, most of the resource of domestic research on res judicata is from civil law system, while as the research on res judicata in common law system is concerned, the resource and achievements are not sufficient. This dissertation does not pay much attention to comparative study, while there is still something new, espcially on contrast and analysis among the concept of res judicata, the concept of non bis in idem, and the concept of the rule against double jeopardy. Fourth, based on the theory of res judicata, it analyzes the gain and loss of the revision of Civil Prodedural Law of PRC in 2007 and concludes that the revision is not good for rebuilding the res judicata of civil judgments in PRC.There are twelve chapters in the dissertation except the introduction and the conclusion.The dissertation begins from the disscussion of fundermental theories of res judicata. It clarifies the concepts and contents of res judicata , as well as the origin and history of res judicata. After that it reviews kinds of theories about res judicata essence. Based on these, it analyzes the values and functions of res judicata and it also elaborats on constitutive requirements and forms, the range of action, the effect of ratio decidendi, and the exceptions etc. The last chapter analyzes the reason of absence of res judicata in PRC. The author puts forward the measures of rebuiding res judicata in PRC and some proposals on rebuilding trial grades and retrial system.Chapter2,"the Concept and the Content of Res Judicata,"emphasizes the concepts and contents of res judicata in the two legal systems, the relations among res judicata , non bis in idem and the rule against double jeopardy etc. There is a cross area between res judicata and non bis in idem. Non bis in idem and the rule against double jeopardy are different and linked in criminal proceedings. The theory basis of them is different.Chapter3,"the Origin and History of Res Judicata", evalues the history of res judicata which can be divided into two phases. In the first phase its substantial effect and procedural effect are mixed, while in the second phase its substantial effect and procedural effect are seperated.Chapter4,"the Essence of Res Judicata", begins with the four popular theories about the essence of res judicata which are the theory of substantive law, the theory of procedural law, the theory of real rights and the comprehensive theory. It analyzes and appraises kinds of theories including the popular theory of revised procedural law in scholar circle in PRC. The author agrees to the theory of revised procedural law. It is held that res judicata belongs to the area of procedural law in essence, the source of which is the judicial power of the state, but it is also of the nature of substantive law.Chapter5,"the Values and Functions of Res Judicata", points out that the values of res judicata mainly includes five aspects. First, it is the objective demand of building judicial authority. Second, it is the essential guarantee of maintaining invariability of law. Third, it is the inner request of improving guarantee of litigation procedure. Fourth, it is the inevitable choice of litigation economies. Fifth, it is the real need of protecting human rights. The values of res judicata are realized by its two functions which are the positive function and the negative function. The author points out that there is a conflict between the functions of keeping invariability of law and making a certain case impartial. It is necessary that the lawmaker make an intelligent balance.Chapter6,"the Constitutive Requirements and the Effects of Res Judicata", firstly expounds that the constitutive requirements of res judicata are of two factors. One is that the judgment must be final, and the other is that the subject matter, the cause of action, and the parties between the two cases must be the same. Secondly, the author clarifies the obscure knowledge of final judgments in scholar circle and points out that final judgments must have judicial effect. At last, the author clarifies its effects on parties, courts, judges, and third parties etc.Chapter7,"the Form Adjudicated of Res Judicata", aims to clarify the major forms adjudicated of res judicata. It is pointed out that final judgments are the major forms of res judicata. Rulings and mediations in civil litigation have res judicata in some aspects or in some degrees. Interim judgments, decisions, orders, and notices are generally of no res judicata. It is also disscussed the res judicata of foreign judgments. The author points out that the res judicata of foreign judgments should be admitted after they are confirmed by domestic courts due to judicial equity.Chpter8,"the Time Scope of Res Judicata", discusses when res judicata happens, when it expires, and when it has binding effects. Based on the available research the author gives his viewpoints on the aboved issues.Chapter9,"the Subjective Scope of Res Judicata", elaborates on the relativity, the relative extension, and the absolute extension of the subject scope of res judicata of civil judgments, based on an evaluation of civil legislation on res judicata in some countries. Meanwhile, the author also expounds the subject scope of res judicata of criminal judgments and adminstrative judgments.Chapter10,"the Objective Scope of Res Judicata", firstly sumarized the objective scope of res judicata of civil judgments. Then discusses its value conflicts, its relations with subject matter, its relations with partial claims, and its scope in subrogation action etc. It points out that when it comes to the objetive scope of res judicata of criminal judgments, it means that the defendents and criminal facts are the same. The author also elaborates the objetive scope of res judicata of adminstrative judgments.Chapter11,"the Effects of Ratio Decidendi", discusses the relations between ratio decidendi and res judicata. Based on the definition of ratio decidendi, the author appraises the two theories of ratio decidendi. One admits that ratio decidendi has effects of res judicata, while the other denies it. The author points out that the defense of right of setoff among ratio decidendi has effects of res judicata, which should be taken as an exception. The author also expounds the concept, the theory, and the applied conditions of the rules of issue preclusion of res judicata in common law system, and thinks it is of importance to be uesed for reference.Chapter12,"the Exception of Res Judicata", aims to expound that final judgments genrally have res judicata but in special circumstances they have no res judicata, which can be taken as an exception, and the reasons why there should be exceptions to exclud the res judicata of final judgments. Then the author introduces the three kinds of system of excluding res judicata which are the system of retrial, the system of unusual appeal, and the system of rescission by third parties.Chapter13,"the Construction of Res Judicata in PRC and the Review of the Retrial System", is the last chapter of the dissertation. It analyzes the reasons why judgments have no res judicata in PRC. It is held that there are mainly five reasons which makes judgments have no res judicata in PRC. Firstly, there is absence of res judicat in history and culcure in China. Seconlly, it makes wrong choice among varies values. Thirdly, it is restricted by the system of retrial. Fourthly, it is challenged by varies powers outside of judicial system. Lastly, it is restricted of the qualities of the whole judges.Then the author puts forward the methods of building res judicata of judgments in PRC. Firstly, ideas should be changed. Secondly, its admission by legislation is the foundation. Thirdly, judicial independence is the necessary outside condition. Fourthly, improving the quality of judges and litigation prodedure is the inner condition. Lastly, the system of rertrial should be reformed. In the end, the author discusses the main defects of our current retrial systems and points out that the never-ending retrial system impairs res judicata and judicial authority. The author anlyzes the revision of civil procedure law in the sight of building res judicata and points out the revision is not good to building res judicata. On this basis, the author puts forward some proposals on rebuilding our trial grade system and retial system. It is held that trial grades system in PRC should generally include three grades and the third instance as the final one, and in some special circumstances restricted retrial is permitted.In civil litigantions the system of the orinal or the second instance may be as the final one supplementally considering some particular cases.The part of conclusion reviews the key points of this dissertation and emphasizes that res judicata is of guiding functions to building the trial grades system and the retrial system. The author also points out the contribution of the dissertation and questions in need of further research in the future.