Research On The System Of Standing To Sue In The Civil Litigation

The concept of "standing to sue" in the modern sense originated in Germany, it was formed on the basis of reflection and inquiry on the form of the concept of significance parties. In civil law countries and regions, the concept of "standing to sue" is defined as the litigation legitimacy prerequisite eligibility as well as the elements to protect rights. The concept of "standing to sue" means the parties for specific litigation, who can participate in the proceedings in its own name and be constrained by the referee. The formal parties with the right of implementation of litigation are the proper parties. The concept of "standing to sue" in the civil action is different from the capacity to be a party, significance parties, this case qualified,"standing to sue" in administrative proceedings. Based on the different nature of implementation of the right, the parties can be divided into the statutory eligibility parties and arbitrary proper parties, the native proper parties and secondary proper parties, the proper parties who have the exclusive right to litigation and the proper parties who enjoy the competing right in lawsuits. There are two theories about the nature of "standing to sue":essential conditions to protect the rights and litigation legitimate requirements. Position of the "standing to sue" in litigation legitimate requirements, the court can review it with the elements of other litigation legitimate requirements. When it is lacking, the court may dismiss the prosecution, without debate and evidence investigation of the case (or entities), in line with the lawsuit economic principles. Because the "standing to sue" related to whether the legal is legitimate, therefore, the court should be in accordance with the terms of reference of the investigation. From economic considerations, the court should review the "standing to sue" together with other litigation legitimate requirements. And the judgments of proper parties should be based on the ending of the debate for the node. In addition, the court should investigate at any time, regardless of the first trial, the second trial or retrial procedure. How to deal with the lack of "standing to sue", there are four kinds of doctrines in the extraterritorial academic:litigation has no reason to dismiss, dismiss through litigation judgment, dismiss through ruling, and dismiss through litigation judgment or ruling. The court should dismiss through litigation judgment. Proper parties lacking, the court is not permitted to make the entity judgment. If the court erroneously makes judgment, even if the sentence has been determined, for the legitimate parties it does not take effect. But what effect occurs for the actual parties, it should be different from the case. The theoretical basis of "standing to sue" is to safeguard the procedural economy well and achieve justice. The system achieves economy of litigation by eliminating the incorrect party, innovating solutions for group disputes, as well as the expansion of the judgment of the effectiveness of the subjective range. By turning on the door to create the right, remedying the micro-interests involving of the majority of people, safeguarding the implementation of the principle of equality of arms, it achieves substantive justice. The construction of system of "standing to sue" needs to establish a priority of the right of appeal, and respect for the program option.In common law, the parties have standing to sue in the condition that they have legal interests in the case. With the advent of modern litigation, such as environmental litigation, ethnic differences in litigation and class actions, the range of the qualifications of the parties greatly widened. Considerable controversy exists in civil law about the criteria for judging "standing to sue", and gradually formed three doctrines:the basis of the right to manage the implementation of the litigation rights, the interests standard, dispute management rights. Germany and Japan’s legal theory have great impact to the civil procedure law scholars in China. On the criteria for judging "standing to sue", the basis of the right to manage the implementation of the litigation rights, the interests standard, dispute management rights have its supporters. The through said is the interests standard. The construction of criteria in single action should adhere to the institutionalized way and be determined into different categories. Specifically, in the action of performance, the standard of "standing to sue" is the parties have management rights on the subject matter,based on the fact that plaintiff claims; In the formation suit, whether the plaintiff is proper should examine whether he has the confirmation judgment legal interests; confirm other’s legal relations, whether the defendant is competent, the inherent for joint action should be adopted; in the formation litigation, whether the parties are proper should be based on the law. Lack of provisions in the law, the persons who want to change the legal relationship between the main bodies should be proper parties. Current legislation and judicial interpretation of the criteria for single parties to the proceedings are inadequate. The court and the parties have different views on the criteria, which need to be standardized and unified.As the special form of proper parties, the litigation take-on shows two features: the third person outside of the main bodies of the entity rights and obligations participates in the proceedings in its own name, the original rights and obligations bodies are bound by judgment. The litigation take-on is completely different with litigation commitments and litigation trust. The litigation take-on can be divided into legal litigation take-on and arbitrary litigation take-on, the interests of the absorption-type litigation take-on and antagonism contend litigation take-on. The legal litigation take-on can be divided into exclusive and competing (coexist) litigation take-on, the legal litigation take-on which protects the interests of the person to be served, the interests of the responsible person, the public interest. In civil law countries and regions, the legislation stipulates wide variety forms of legal litigation take-on. The insolvency administrator, executor, administrator has been widely recognized. There are many questions about the legal litigation take-on in China’s legislative and judicial interpretation, we need to improve it. We should clearly stipulate the legal litigation take-on though law, expand the range, establish the status of the prosecution and environmental protection organizations, at the same time, the effectiveness of the judgment should be clearly defined. Arbitrary litigation take-on can be divided into arbitrary litigation take-on for the interests of the person to be served, the interests of the responsible person, the type of selected parties and of a third person, recognized by law and to be the legal recognition. Seeing from extraterritorial legislation, arbitrary litigation take-on recognized by law includes the selected party system and class action.China has approved copyright collective management organization to participate in the proceedings. Arbitrary litigation take-on to be recognized by the law is surviving in the larger controversy. To facilitate the realization of the right and resolve disputes, we should confirm the legitimacy of the role of arbitrary litigation take-on, at the same time, restrict applicable conditions.Litigation trust belongs to a kind of trust system. The establishment of litigation trust must transfer the substantive rights and procedural rights, litigation trust has three parties, the trustor, trustee and beneficiary, the trustee manages or disposes of the trust property through the implementation of the litigation behavior. According to the different purposes, the litigation trust can be divided into a public interest litigation trusts and private interest litigation trust. Extraterritorial public interest litigation trust exists mainly in the field of consumer protection, there is no provisions on the trust of the public interest litigation in China. At this stage in our country, the consumer protection groups should be given the status of litigation trust trustee. The legitimacy of private interest litigation trust is surviving in the larger controversy. Trust law in Japan’s first regulations that, litigation trust is void.It is transplanted by Taiwan. Trust Law in China also provides that, the establishment of a trust to litigation or debt collection is invalid. Our academic attitude towards litigation trust is also generally negative. In China, we should recognize the legitimacy of the litigation trust, for the following reasons:first of all, our country does not implement the principle of mandatory proxy of solicitor, so confirming the litigation trust legitimate does not violate the mandatory attorney; secondly, the negation of litigation trust is not the international practice; once again, litigation trust is void has been subjected to the criticism of many scholars; finally, the trust acts is a legal behavior in private law, based on the consideration of the principle of private autonomy and the protection of rights of the parties, there should not be too many restrictions.If the parties are not proper, the court should give opportunity to rectify. As far as the single action, it means the party is replaced with a proper party; as far as the joint action, apart from the changes of parties, also involved addition, missing parties be appended to conform the need for joint action of all parties must work together to participate in the appeals. In a broader sense, party changes include statutory change and any client changes of the party. The statutory change of the party is expressly provided by law, academia has little controversy. Narrow parties change refers only to arbitrary changes of the party. The legality of the arbitrary changes are still controversial. The arbitrary change of the party system has broad application space, a unique value which leads to economic lawsuit and conducive to the settlement of disputes and the realization of justice, therefore, it’s necessary to confirm the legality to arbitrary change of the party system as a whole. To make a party proper is a single special behavior, so the theory such as "resort to change said" or "composite acts" is not desirable. Arbitrary changes of the parties should be regulated by the limited types and elements set to avoid running drawbacks. To make the subject matter of litigation coherence can achieve the economic. Before the changes, the court should get the relevant parties’ agreement. In our country, arbitrary change of the party system is missing. If parties are not proper, the court will dismiss the prosecution, resulting in enormous waste of human, material and financial resources and indirectly affecting others’ use of judicial resources and efficiency. Therefore, it is clear that it is necessary to re-establish the system in the civil procedure Law. As for the specific set of elements, the party’s apply for changes, should be presented in writing to the court. If a judge or a collegial panel considers that the change is necessary, it shall seek the views of the parties. In the case of parties do not agree to the change, the court overrules and serves on the parties. Then the old parties will exit the lawsuit and the new parties participate in the proceedings. To ensure the smooth running of the system, intermediate ruling regime should be established. The court can make an interlocutory order when it agrees that the party is proper. If the party refuses to accept the order, he can appeal indepently in order to determine this dispute as soon as possible. The court should clear the changes of the burden of the cost of the litigation and legal effects if any party changes. Additional parties, based on the need for joint action of all parties must work together to participate in the proceedings as a precondition. The criteria on the necessary co-parties to the litigation, common law thinks that all parties should set out in a joint action, litigation party is legitimate. Civil law has different points of view. Exploring that issue, we should also take into account the interests of both the suitor and declined to prosecute. Common people must work together to prosecute, just to meet the requirements of "standing to sue", but the rights of those who refused to prosecute should be fully protected. Due to litigation for the necessary joint action must be determined, necessary joint action should sue or be sued, then the parties will be proper. In this context, a person or persons among the joint action when they are not suing or being sued, to fit the qualification requirements of the parties, thereby expanding the function of litigation to resolve dispute, preventing economic contradictory decision, implementing the court proceedings, parties is necessary to append. The means to append parties are "involuntary plaintiffs law" and "mechanisms of life force appended to the plaintiff’. In our country, the parties additional exhibit four characteristics:first, appended by the court on its own initiative; second, the court inform the parties shall be appended to the form of notice; third, the court decided to append the parties without any referee instruments; fourth, only plaintiff additional requirements. Such additional approach neglects the dominant position of the parties procedures, neglects the rights of the people who refuses to sue, at the same time, the parties additional procedures applicable to lack of time as well as formal restrictions. Therefore, there is a need to improve and refine, specific ideas for: Party of the proceedings who did not participate in the proceeding must work together, if not, the courts should provide clarification, the plaintiff, by its decision on whether to apply to the Court for additional client, plaintiff does not apply, overruling. Upon written application to the Court, the plaintiff, the Court ruling has not participated in the proceedings who participated in the proceedings within a certain period, participation of overdue, deemed to have been appended. In an adversarial procedure, additional plaintiffs only need new plaintiffs consent, In the second procedure, for disposition of the request, additional plaintiffs should receive new plaintiff’s agreement, while old defendants lost a fact instance of interest, it should also obtain their consent. To protect the interests of the new instance, we need to get their consent.