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On The Expansion Of Civil Resjudicata

Posted on:2010-10-15Degree:DoctorType:Dissertation
Country:ChinaCandidate:J H HuFull Text:PDF
GTID:1116360302955943Subject:Procedural Law
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The concept of res judicata was originated in Roman law; we could trace it back to the principles of"autrefois attaint"and the principles of"non bis in idem"in the Roman law. It is general accepted in our nation that res judicata is the compulsive general force of the determinate sentence to the party and the court in substance. It reflected that after the judgment was determinated, the party should not make another litigation with the same legal relationship which was settled in the judgment, also, the party should not present a claim for the same relationship in another litigation that contradict to this lawsuit, at the same time, the court should not make judgment that contradicted to the fixed content of this sentence.The main thoghts of the tradional civil lawsuit proposed that the binding power of the res judicata was usually found in two intervening parties only and the scope of the binding power was limited in the judgment of the main body of a court verdict which centered on the substantive jural relations of the object of action. Once a final judgment of a case was sentenced by the judicatory, the party was forbidden to relitigate, and this is so called the function sphere of the res judicata. But, the judicial practice demonstrate that the function sphere of res judicata of the traditional theory can not avoid the emergence of the contradictory judgment, its getting more serious especially after some disputes of groups, interest spreading and plural subject of difference interest arisen abundantly. For this reason, the theory circles put forward the so called problems of the expansion of res judicata. There has three specific ways of the expansion of res judicata; they are the expansion of the subjective sphere of res judicata, the expansion of the objective sphere of res judicata, and the expansion of validity sphere of res judicata. In the theory circle, the expansion of subjective sphere of res judicata was regarded as the phenomenon of the effect of the judgment between the two parties expanded to the third after broken the doctrine of the relative of res judicata, the phenomenon of the endorsement of the judgment of grounds of decision which made by the judges possessed the binding force or the familiar force of binding power, while did not limited the objective sphere of binding force in the judgment of the main body of the court verdict. Was regarded as the expansion of objective sphere of res judicata and the expansion of validity sphere of res judicate means the binding force of a judgment do not only functioned while the case was relitigate, it also functioned while the determined matter of the former judgment was the premise of the later lawsuit, the trial court of the later lawsuit must based his judgment on the determined facts of the former judgment. Some specific situations that permit the expansion of the subjective sphere of the res judicata was stipulated in our nation's legislation, but it could not meet the needs of the society and economic development. Further more, the remedy measures of the third party which influenced by the expansion of the subjective sphere of the res judicata was not included in our nations legislation, this text propose adding procedural safeguards beforehand and remedy measures afterward, to protect their legitimate interest. There have five different thoughts about the expansion of the objective sphere of the res judicata in theory circles , they are: given binding force to the reason of adjudicate; given the effects of an sisne to the reason of adjudicate; given the binding power to the reason of judgment according to the good faith doctrine; expand the object sphere of res judicata through the expanding of right of claim; expand the object sphere of res judicata through the introducing of implied intermediate action for confirmation. The text argues that there exits some problems of those ways of expansion, the comparative feasible way is writing the fact that have direct causality with the judgment of the main body to the main body, to maintains the traditional formula of"the objective sphere of res judicata is the judgment of the main body", it can also expand the objective sphere of res judicata substantively and out of the difficult position which caused by the over-narrow objective sphere of res judicata.The validity sphere of the res judicata should be expanded was supported both by legislations and theory circles of our nation, but, the restriction our nation's legislation about this problem seems very roughly, and the theory circles discussion were not deep enough. The text proposed that the expanded validity of the res judicata was a relative validity, it was influenced by many factions, such as. The standard testification, the party's exercise of the right of disposing, ect. and the power of the expansion validity of res judicata must combine the specific circumstance to make specific analysis. The case validity and the expansion validity could be separated. Once those two validities separated, the phenomenon they can interpret will be limited in the court's judgment no more, and they will interpret some of non judgment documents also. In addition, the validity separate theory of res judicata, will reform the relation between the litigation system and non litigation system through the sphere of validity.
Keywords/Search Tags:Civil Lawsuit, Res Judicata, Field Expansion
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