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Study On Civil Procedure Prerequisite

Posted on:2010-12-11Degree:DoctorType:Dissertation
Country:ChinaCandidate:T MengFull Text:PDF
GTID:1116360302971809Subject:Environment and Resources Protection Law
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The concept of the civil procedure prerequisite was firstly used by Bülow, a famous scholar in Germany during the gemeines recht period . He put serous criticize on the theory of Einrede, and bought forward the concept of the civil procedure prerequisite which means that the parties and the courts have the legal relationship. The concept of the civil procedure prerequisite was the tools by which Bülow discussed theory of relationship between the parties and the courts. After the theory of legal relationship was amended by scholars, the concept of civil procedure prerequisite started to develop independently.The civil procedure prerequisites have different forms in practice and theory, especially in countries whose histories established on Roman law. German law maintained features of ancient Roman law litigation, especially the system of actio. The theory of civil procedure prerequisites has been one of the fundamental parts of basic knowledge of such countries as Germany and Japan, thanks to the study of scholars during the gemeines recht period. No doubts, the nature of the civil procedure prerequisites is the source of dereferences between many theories on civil procedure prerequisites. The problems such as the formation, function and trial of these prerequisites will have deferent conclusions, because of deferent theory of essence.There is little special study about the theory of civil procedure prerequisites in our country, but the theories on rights of appeal, civil procedure target, parties, and interests of suit and jurisdiction of courts are all reflection of this theory. But this kinds of methodology has reduced the worth of this theory in civil procedure construction, being obstruction of study on common problems about procedure prerequisites. As a result, scholars did not distinguish the deferens between procedure prerequisites and other concepts, such as prosecute requirement, entity sentence requirement and the requirement of rights of appeal. Besides, scholars of our country ignore the problems about the trail of civil procedure prerequisites accidentally.This article is about the theory of civil procedure prerequisites from the point of procedure construction, and legitimacy of suit is the core parts of this theory. If such prerequisites are not integrated, the courts will reject the appeal because the suit is not legitimate. The parties can repair the lack of procedure prerequisites, thus the litigation will continue. To parties of procedure, their rights about litigations can be protected by means of debate on problems of procedure prerequisites. On the other side, the trial on procedure prerequisites can save much time and energy, by means of making the litigation stop before fact-finding stage. From the point of litigation itself, the theory of procedure prerequisites will provide many useful ideas to perfect our own country's civil procedure law.From the academic point of view, the problem of legitimacy of suit can be divided to two parts, procedure prerequisite and procedure demurrer. Procedure prerequisite is investigated by courts actively, and procedure demurrer has to be proposed by parties of litigation. This article will study these two different theories by means of investigation, burden of proof and composition.This article will discuss two aspects of elements of suit on the problem of its validity. From the party's point of view, capacity, qualification and interest will play important role on procedure prerequisite. Besides, procedure prerequisites include object parts, such as the subject matter of litigation, the extent of jurisdiction etc.This article advocated that procedure prerequisite trying must take maximum limit realize the procedure significance as a premise, as for does not cause referee's delay. Therefore, before the entity parts decided, courts should make sure that the procedure prerequisites are existed .between the important document by no means absolutely, relates or the parallel relations, regarding the lawsuit important document court which relatively easy to judge must before this case referee try to finish; But regarding difficult to judge, with the entity important document close contacting lawsuit important document may before this case referee ended tries to finish. Therefore from this angle, lawsuit important document trying and this case decides important document trying the suitable separation. This article takes the lawsuit important document theory one practice method, analyzes our country present civil action related lawsuit system.The goals of study on the procedure prerequisite theory include analyzing our country's judicature practice to find out irregular phenomenon, and propose the improvement mentality. For example, the jurisdiction system, the litigant system, sues interests and effect of sentence is all objects of this article, and by these kinds of research our civil procedure law can be improved consequently.
Keywords/Search Tags:Civil Procedure Prerequisites, Civil Procedure Demurrer, Legitimacy of Suit, Rights of Appeal
PDF Full Text Request
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