On Civil Claims For Remedy

This dissertation is composed of seven parts:Introduction; Chapter One "Meaning and Classification of’Claim for Remedy’"; Chapter Two "Function and Clarification of Claim for Remedy"; Chapter Three "Abnegation and Alternation of Claims for Remedy"; Chapter Four "Denial and Admission of Claims for Remedy"; Chapter Five "Joinder and Disposition of Claims for Remedy"; Chapter Six "Missed Adjudication of Claims for Remedy and Its Remedy".Introduction This part demonstrated the significance of the dissertation. The research on claim for remedy is significant because of at least three reasons:First of all, it helps deepen the research on the basic conceptions such as action and object of action. Secondly, it helps accelerate the perfection of the civil procedural law legislation. Thirdly, it helps guide the litigation practice. This part also summarized the productions on research on claim for remedy at home and abroad, which on the one hand exhibited the present situation of research on claim for remedy in academe, and on the other hand further projected the significance of this dissertation.Chapter One This chapter discussed the conception of claim for remedy, the relationship between claim for remedy and action, the relationship between claim for remedy and object of action, and classification of claim for remedy. Claim for remedy is the assertion of right that a party raises during the action as the object of adjudication. There are differences as well as connections between claim for remedy and action. Action is the party’s demand to the court for adjudication. Claim for remedy is one of the factors of an action, and is the object that the party asks the court to adjudicate. Claim for remedy is not equal to object of action. Claim for remedy is the assertion of right based on the object of action, and claim for remedy is the core content of an object of action, the main ground for identifying an object of action. However, an object of action is not only the claim for remedy, instead, it comprises also the facts of the case and the reasons of the action. Claim for remedy can be classified by different standards. According to the content and objective of the plaintiff’s claim, it can be classified as claim for affirmance, claim for payment, and claim for alternation. According to the ranking and function of the claim in preparatively joined litigation, it can be classified as primary claim and alternative claim. According to the action that the claim belongs to, it can be classified as claim, counterclaim, joined claim, appeal claim and retrial claim.Chapter Two This chapter discussed the function and clarification of claim for remedy. Claim for remedy has important influence on the formation, advance and conclusion of civil procedural relationship. To be more specific, claim for remedy has three functions:to demonstrate the purpose of action, to direct the debate, and to restrict the adjudication. The clarification of claim for remedy not only means setting up the claim for remedy, but also means that the claim for remedy should be specific and unambiguous. In a general, setting up claim for remedy is the obligation of plaintiff, but undoubtedly, defendant’s defense actually expedites the classification of claim for remedy. Moreover, the court will also remind the plaintiff to clarify claim for remedy, if necessary. How the party describes the reasons of action is important for clarification of claim for remedy. Considering the limit of the party’s litigating capability and that the litigating process is dynamic, it is not appropriate to impose too strict requirements on the party’s description of reasons of action in his petition. Generally speaking, it is ok as long as the party’s description of reasons of action reaches "the minimum level of clarification of claim for remedy." The alternative claim for remedy is kind of breaking the principle of clarification of claim for remedy, but its existence has specific value and it should be allowed to apply conditionally in practice.Chapter Three This chapter discussed the abnegation and alternation of claims for remedy. Abnegation of claim for remedy is the plaintiff’s statement to give up his claims for remedy completely or partially. It is not equal to withdrawal of lawsuit. It is the actual disposition of the substantial rights that the claims for remedy are based on. If a party abnegates claims for remedy, the court must make substantial judgment on the case and the party who abnegated the claims cannot bring another action based on the same dispute. Alternation of claims for remedy as well alternation of object of action can both cause the alternation of an action. But in order to show different restraints on them, the alternation of action caused by the former is usually not treated as alternation of action so is not under the restraints of alternation of action, while if the alternation of claims causes alternation of object of action and then results in alternation of action, it will be strictly restrained. China civil procedural law does not regulate the conditions of alternation of claims for remedy, and does not distinguish different situation of alternation of claims for remedy either. The time limit on the alternation is also ambiguous. So the practice is not the least standardized. We should learn from the civil law tradition to clarify the conditions of alternation of claims in the first instance, and to allow the parties to alternate claims in the second instance conditionally. It is explanation of legal application for the court to remind the party to alternate claims, which has affirmative effect. There are similarities between intermediate judgment and the court’s reminding of alternation of claims and they can supplement each other in application. But intermediate judgment can not entirely substitute the court’s explanation of the claims.Chapter Four This chapter discussed denial and admission of Claims for Remedy. Denial of claims for remedy is the defendant’s negative statement toward the plaintiff’s claims for remedy. The denial is the negative statement "not aiming at the causal facts, but aiming at their legal effect." It is equal to the demurrer in proceeding, which actually aims at counterparty’s claims. Compared with demurrer and denial of claim, rebuttal is a broader conception, which is the negative statement toward counter party’s claims, facts and reasons, comprising not only the rebuttal toward the claims for remedy, but also the rebuttal toward other procedural and substantial facts or reasons. Admission of claims of remedy is the defendant’s statement admitting the plaintiff’s claims for remedy completely or partially. In order to have legal effect, admission of claim must meet some requirements. Admission of claim has binding force on the court, plaintiff and defendant, so the defendant has no right to revoke or withdraw the admission under the pretext of mistake.Chapter Five This chapter discussed three issues:the meaning and classification of joinder of claims for remedy, simple joinder of claims, and preparative joinder of claims. The joinder of suits necessarily brings the joinder of claims, but the joinder of claims is not necessarily the joinder of suits. In most situation, the so-called joinder of suits on the civil law civil procedural law theory is in fact the joinder of claims. Joinder of claims for remedy can be classified as simple joinder of claims and preparative joinder of claims. Simple joinder of claims is the basic form of joinder of claims. It has some restraints and its trial and judgment deserves discussing. Preparative joinder of claims has great value in practive. Its legality should be admitted, but its application should be conditional and its trial and judgment is necessarily different from common procedure.Chapter Six This chapter discusses several issues on missed adjudication of claims for remedy and its remedy. Missed adjudication of claims means that the court does not adjudicate some or all of the party’s claims for remedy in its judgment. It is the most typical form of miss in judgment, but it is not equal to miss in judgment, which has broader meaning. Missed adjudication of claims is not equal to mistaken statement in judgment, which is only a mistake on form, while missed adjudication of claims is a substantial mistake. The "main text or reasons" in the judgment are not the only basis for identifying missed adjudication of claims, and other litigation materials are also needed sometimes. The precondition for missed adjudication of claims is that the claims can be divided. If the party’s claims for remedy cannot be divided, but the court gives judgment on only some of the claims, this kind of judgment should not be called partial judgment, instead, it is a complete but flawed judgment. The general way to remedy missed adjudication of claims is supplementary judgment, a proceeding which can be triggered by the party’s application as well as the court’s own initial. The supplementary judgment has time limit. If the missed adjudication of claims in the second instance is beyond the time limit of supplementary judgment, it should be treated as no appeal, and the judgment in the first instance becomes determinate. If there are other procedural or substantial problems in the first instance judgment besides missed adjudication of claims, effort should be done to harmonize appeal and supplementary judgment.