The Research On Type Of Action

In the countries of Civil-law system, according to the traditional theory of the type of action,the actions are divided into the action for fulfillment, the action for confirmation and theaction for formation, and the action for formation is further divided into the action forformation in the substantive law and the action for formation in the procedural law. Thistheory of the type of action is the general view in the countries of Civil-law system, and inaddition to the weak query, most scholars identify with this classification approach. But thistheory in which the actions are divided into three types still has problems. It is not scientificthat in this theory all lawsuits are merged into the action for fulfillment, the action forconfirmation and the action for formation ignoring the difference between all lawsuits. Thefinal result is that this theory leads to the shake of the theory of the type of action. The root isthat the so-called action for formation in the substantive law and the so-called action forformation in the procedural law are mechanically tied with. Deconstructing the system of theaction for formation in the traditional theory of the type of action is the key to creating thenew theory of the type of action.Tracing the history of the action for formation, the action for formation originally solvesdisputes born of the right of formation in the substantive law. So, the action for fulfillment,the action for confirmation and the action for formation are tied with. In the new theory of thetype of action, the action for formation returns to itself. With all kinds of lawsuits originallybelonging to the so-called action for formation in the procedural law peeling off, the actionfor fulfillment, the action for confirmation and the action for formation together form thesystem of the primary action. In the higher level, all kinds of lawsuits originally belonging tothe so-called action for formation in the procedural law are classified as the secondary action.The disputes solved by these lawsuits are born of the party’s dissatisfaction with theprocedure or the result of solving disputes, and they are born in the process of solvingdisputes. So these lawsuits are different from the action for fulfillment, the action forconfirmation and the action for formation that solve purely the disputes in the substantive lawand they should tie with the system of the primary action formed by the action for fulfillment,the action for confirmation and the action for formation. It is thus clear that according to theroot of disputes, the actions are divided into the primary action and the secondary action. Theprimary action solves primary disputes born of the people’s social interaction.The secondaryaction solves secondary disputes born of the procedure of solving disputes.On the whole, the actions are divided into the primary action and the secondary action.Andthis promotes the development of the theory of the type of action. In the new theory of thetype of action, it should be admitted that the primary action is dominant and the secondaryaction is auxiliary in the system of the action. After all, secondary disputes born of theprocedure of solving primary disputes are not normal. Compared to the primary action, thesecondary action is unusual. So, the primary action should be studied as the key part in thetheory of the type of action. Combining with lawsuit practice, it studies subtypes of theprimary action, and especially studies the action for fulfillment and the action forconfirmation. This is pragmatic approach. The secondary action ignored by the theoryresearch also should be studied still further, to direct lawsuit practice and to perfect civillitigation procedure and to still further relieve the party’s legitimate rights and interests in thecivil litigation procedure.The paper, in addition to the introduction, is divided into seven parts:In the first part, it expounds the history of the action, the connotation of the action and thetype of the action. In order to further study the type of the action, it firstly knows the action as a whole, including the history of the action and the connotation of the action. It isespecially need to point out that the action’s appearing constantly is an important feature inthe history of the action. And it promotes the development of the action, and it becomes thehistorical foundation of the traditional theory of the type of action. The theory in which theactions are divided into three kinds of actions is the general view in the countries of Civil-lawsystem. Although there is also the corresponding classification method in the countries ofCommon-law system, it is not enough to be a kind of theory of the action. In addition, thereare also other classification methods in the countries of Civil-law system, but they are not thegeneral views.In the second part, it introduces and evaluates pertinently the theory in which the actionsare divided into three kinds of actions and that is the general view. It forms, respecting thehistory of the action. The theory in which the actions are divided into three kinds of actionskeeps the close relationship with the theory of object of action, the theory of the benefit ofaction and the judgment theory. In a certain extent, each basic theory is improved andperfected with the action’s appearing constantly, and the theory reaches the staged perfectionwith the establishment of three kinds of actions. Although the theory in which the actions aredivided into three kinds of actions should be recognized, it is not to say that there is anyproblem in the theory, it also is not to say that there is any query to the theory in the field ofthe civil procedure law. In fact, there is the query to the dominant position of the theory, andthere also is the query to the system of the theory. In a word, the theory in which the actionsare divided into three kinds of actions should be evaluated pertinently in the theory of action,and on the basis of the theory in which the actions are divided into the action for fulfillment,the action for confirmation and the action for formation, summarizing the features of threekinds of actions, it ties three kinds of actions as a whole with the others to form the perfectsystem of the action.In the third part, it deconstructs the system of the action and puts forward the new theory ofthe type of action, by questioning the so-called action for formation in the procedural law. Allkinds of lawsuits originally belonging to the so-called action for formation in the procedurallaw peel off, and the action for formation returns to itself. All kinds of lawsuits originallybelonging to the so-called action for formation in the procedural law and other lawsuits withthe same features form the system of secondary action.According to the root of disputes, theactions are divided into the primary action and the secondary action. The primary actionconsists of the action for fulfillment, the action for confirmation and the action for formationwhich returns to itself. The secondary action contains all kinds of lawsuits originallybelonging to the so-called action for formation in the procedural law, and also contains otherkinds of lawsuits with the same features.In the fourth part, from the theory, the practice and the trends, it demonstrates thesecondary action. The secondary dispute comes in the process of solving disputes, in relationto the dispute resolution procedure. The secondary action perfects the civil procedure andfurther protects the party’s rights and interests.As the dispute resolution mechanism, the justice should solve the disputes in the party’ssocial life and economic exchanges, and it also should protect the party’s rights and interestsin the civil procedure. It is the root of the right of action and interests of action. Theobjection of action theory of the secondary action needs to reconstruct, and applies to theimproved dichotomy theory. The objection of action theory of the secondary action includesthe statement of action and the matter of law, and as long as one of the two elements issingular, the objection of action theory of the secondary action is singular, and as long as twoelements of before and after actions are different, the objection of action is singular, and before and after actions are not the repeat prosecution. The objection of action theory of thesecondary action effectively solved its own problems of repeat prosecution between theprimary action and the secondary action and between the secondary action and the secondaryaction.The secondary action has a very large development space with the development of the civilprocedure owing to the feature of the disputes solved by the secondary action. The secondaryaction will be the important way to protecting the party’s rights and interests in the civilprocedure.In the fifth part, it studies the subtype of action for fulfillment specifically and creatively.The most striking features of the action for fulfillment is that it realizes the right of claim inthe substantive law. So, it studies the action for fulfillment combining with the right of claimin the substantive law. Now there are many problems in the process of the research on theaction for fulfillment. It is necessary to study the subtype of action for fulfillment specificallyand creatively combining with the practice. Specific research aims at the action for fulfillingbehavior, and creative research aims at raising the preventive action for fulfillment.As to the action for fulfillment, the action for fulfilling property is the center of the research.And the lack of research on the action for fulfilling behavior has led to the delaying researchon temporary relief procedure and execution measures. By the research on the action forfulfilling behavior, it researches on the temporary relief procedure in the action for fulfillingbehavior. The action for fulfilling behavior is further divided into the action for act and theaction for omission. The measures for executing the judgments of two lawsuits are different. Itparticularly researches on the measures executing the irreplaceable behavior and the omissionof the judgments for fulfillment.The preventive action for fulfillment is raised preparedly, and there is the root of the rightof claim in the substantive law. From the joining point of the substantive law and theprocedural law, the preventive action for fulfillment has its own benefit of action. Wanting topractically play the role of the preventive action for fulfillment to prevent impairment, it mustdeal with two matters: the judgment to the benefit of action and the limitation to the claim oflawsuit and the main body of the judgment. The benefit of the preventive action forfulfillment is defined as risk of impairment. But the concept is too abstract to lack thefeasibility, so it is studied how to judge the particular case of risk of impairment. In addition,the preventive action for fulfillment is further divided into the preventive action for act andthe preventive action for omission. It is easy to limit the object of action, the claim of lawsuitand the main body of the judgment of the preventive action for act. But it is difficult to limitthe three aspects of the preventive action for omission, because the right of claim forpreventing impairment in the substantive law is not specific. So, it is necessary to constantlyreview disadvantages of any theory in practice, to enrich the experience of the judgment to thebenefit of action and the limitation to the claim of lawsuit and the main body of the judgmentand to play the role of the preventive action for omission to prevent impairment.In the sixth part，it expounds the boundary of action for confirmation from three aspects.The most striking feature of action for confirmation is that its subject and object are wide, soit is important to delimit the boundary of action for confirmation. Only delimiting theboundary of action for confirmation can clearly delimit the boundary among the action forfulfillment, the action for confirmation and the action for formation.Wanting to delimit the boundary of action for confirmation, it is important to make clearhow to choose between the action for fulfillment and the action for confirmation with disputeresolution ways, and it is also important to make clear the vague boundary between the actionfor confirmation and the action for formation. Further more, it specifies the party and the subject of the action for confirmation, and by the practice it focuses on resolving the problemfor the defendant’s fitness in the action for confirmation in the field of the company law. Inaddition, by the practice it studies the typical field to apply the action for confirmation indepth in order to guide the practice of the lawsuit and delimit the boundary of action forconfirmation in the practice.In the seventh part, it discusses how to construct the system of action in the new theory ofthe type of action. The system of action is incomplete in our countries. The weakness of thesystem of primary action and the lack of the system of secondary action affect thedevelopment of civil litigation system in our countries. So, by the research on the type ofaction, it constantly perfects the system of primary action and constructs the characteristicsystem of secondary action.