The Civil Litigation Elements Theory

Theory of requirement for civil litigation constitution, as well as those of action purpose,litigious right, object of action, and res judicata in civil cases, is traditionally fundamental incivil procedure study. As an indispensable part of civil cases judging, it is most widely used,and the theory is thereby of great theoretical and practical importance. In our judicial practice,however, many problems arises in that we often mistake litigation constitution forrequirements to commence an action, or, procedural conditions for legitimacy of a suit,because we have no clear understanding of litigation constitution in theory and practice, letalone understanding of systematical adjudicating and judging, therefore the problem cannotbe solved and has to be submitted to judicial committee with a court of law at any level,which has greatly reduced civil judging efficiency. The paper is hereby designed to promotethe study of requirement for civil litigation constitution, clarify its nature as it is andstrengthen its theory system in order to facilitate civil cases judging in practice, making ourjudicial system work more smoothly.The paper is composed of four chapters with a total of110,000characters, as follows.ChapterⅠis mainly on nature of civil litigation constitution. Through study of legalhistory from ancient Rome law to uniform German civil procedures, the author finds that thequestion of litigation constitution is closely related to procedural defense which once derivedfrom demur with substantive law. However, procedural defense with strong sense of publicwelfare, contradicts theoretical independence of requirement for litigation constitution. Theauthor suggests that we should clearly differentiate litigation constitution from proceduraldefense based on the inheritance between litigation constitution and procedural defense, andtherefore the developing and strengthening of procedural ontology (procedural value ofself-reliance) of civil litigation constitution would solve the problem of requirement forlitigation in nature. On the problem of nature of litigation constitution, the paper expatiates onthe argument between German and Japanese scholars dating from the German scholar OskerBulow, and finally defines that the procedural legality of litigation constitution has the senseof procedural self-reliance in it, meantime, attribute within litigation constitution required fordeciding the case in question is designed to emphasize its role of instrument, both of which are two aspects of one question, and no contradictions are involved in.ChapterⅡfirstly overviews foreign conditions of commencing a lawsuit, and throughconsultation of systems in some countries of two legal systems respectively, comes toconclusion that the two legal systems, as common law and continental law system, have bothrequired some items registration as necessary, and differs in that the continental countriesreviews litigation constitution as well as what needed to commence a lawsuit in a court, whilein common law countries, items for commencement of a lawsuit is needed, which clarifiesand points out the wrong doing of ‘case registration’ at a court at home and abroad. Secondly,the paper overviews the category and function of litigation constitution as well as its concept.Thirdly views our systems as commencing a suit and its formal review at a court. Finally,Through above comparison of two legal systems, the paper comes to conclusion that the caseacceptance system of our civil procedure has in fact contains only part of litigationconstitution, therefore the author believes that we should establish formal (only as to forms)requirements for a lawsuit and formal examination as a whole, combined with specificlitigation constitution (competent authorities required of people’s court on the legal matters,for example), so as to clarify and establish two systems of civil case acceptance conditionsand requirement for civil litigation constitution and their basic connotation. In conclusion,conditions to commence a lawsuit include items necessary for a case and case acceptance fee,and indictment should write down parties and legal representatives, action request and actionreason and the fact, the court, signatures of plaintiff and its legal representatives, stamp, andtime, etc. Litigation constitution, however, includes that the parties conform to our courtdecision and jurisdiction(as well as international jurisdiction), existing parties, andcompetence of both parties as well as that required for a lawsuit in a party and its legalrepresentatives, and the proper parties needed, object of action with a lawsuit, interestedparties, and non-repeated suit which is prohibited.Chapter Ⅲ is about litigation constitution and relevant problems in trials andadjudications. First, for trial order (or judging sequence) as to civil litigation constitution, theauthor suggests that we should research into conditions of each case while making decisionsfor trial sequences between the two aspects of litigation constitution and requirements foraccepting the case at a court, on account of large variety and quantity of civil litigationconstitution, and according to different situations of the case as well, and finds that litigationconstitution mostly comes before the current case adjudication, only for that interests of action as well as proper parties are closely related to the case, deciding of which is usuallywith that of merits of the case in questions. Therefore, the two sides of the case usually cometogether at a court; though it can’t negate the principle of decide the litigation as priority.While, the paper hereby gives up the principle of having litigation condition as a wholeregarding the sequences of case adjudication, and taking the litigation condition as priorityafter evaluating each requirements for commencement of an action, and interests of plaintiff,defendant, and the court respectively. In deciding the sequence between requirement forlitigation constitution and requirements for accepting complaint, the priority is given to loosesequential method, i.e. some sequences should be stick to regarding sequences of litigationconditions, though the sequences are not binding at all. In deciding internal mutual trialsequence of litigation constitution, the paper suggests to choosing mode of loose sequence,and for specific trial sequence, requirements for litigation constitution should be classified ingeneral and determined individually. And reviewing of object of an action in litigationcondition should come before those of the court and the parties. Second is about manner ofinquiry of litigation constitution, defining the difference between inquiry by power and thedoctrine of ex officio, and pointing out that inquiry by power should be confined timely toobject of case reviewing, and doctrine of ex officio should be the time when materials arecollected and provided at court, holding that items of inquiry by power with regard tolitigation requirements should be collected and reviewed by means of doctrine of ex officio oradversary system respectively according to how it weighs as for public purpose. When theparties and jurisdiction exist with no effective judgment and res judicata exist, etc, theadversary system should be taken. Third, for proof method, the paper suggest to taking strictproof, i.e. we should strictly conform to universal proof investigation sequence provided bycivil procedure, while the burden of proof regarding litigation constitution goes to the plaintiff,while the defendant should bear it when negative lawsuits happen out of repetitive action orres judicata exists.Chapter Ⅳ firstly elaborates the evolution of decision forms of litigation conditions,pointing out the difference between substantive case decision and litigation decision andclarifying the reasoning with decision forms taken regarding litigation condition. However,owing to our immature research in the theory, the paper suggests temporary account indecision reasoning as a transition. Second, the paper elaborates on res judicata with courtdecision, interpreting res judicata from external function instead of inner explanation, meanwhile giving an in-depth analysis of the difference between res judicata of litigation andthat of the case in question in terms of their coverage, functioning condition, and how itweighs of ability loss as well as how it weighs in positive effect happens, of which, the formerare about difference in quality and the latter is about difference in amount. Last, the authorgoes through Japanese legal theory and cases, and development, and concludes that time lineof res judicata should be the time when examination of facts and argument are over with newfacts arise as an exception, which causes invalidation of action or retrial at the court.