| "Actio" is an important concept in Roman law. It is at the heart of the proceedings ofRoman law. It is the common starting point of the modern theory of action and the right ofaction. Although the modern theory of continental civil procedure (particularly the theory ofGerman-Japanese Civil Procedure) made a distinction between the theory of action and theright of action, as two distinct theories, from the historical point of view of its origin anddevelopment, theories of action and the right of action of modern continental law areinextricably linked with the theory of action in Roman law.The theory of action in Roman law is a theoretical system which is constituted by civillaw and the law of judge. Among the features that distinguish the Roman law, the moststriking is the intimate relationship we discover everywhere between thought and form,between the idea and its realization exterior. In a legal system, the honorary action and thecivil action coexist. In order to deny parties’ rights of action or to grant them the right ofaction, the Roman magistrate prevents or alters the civil law in practice. However, in terms ofsurface, the civil law is not subject to damage, because the civil law itself is always expressedas an independent legal system and all-inclusive. The intervention of a judge basis on hispower of governance and expressed by his judicial discretion.The theory of action in Roman law aims to answer "why the party may bring an action".In principle, the civil action follows the formula that "there is a right, there is an action”. Insome cases, the substantive rights of the parties may not be able to access to justice, that "theparty can not always have the right of action even if he has a substantive right", because theRoman magistrate has the right to deprive parties the right of action which is based on civillaw. The honorary actions are independent of the civil actions. The honorary action mainlyfollows the formula that "no substantial rights can also have the right of action.” Whenlegislative gaps appeared in civil law, Roman magistrate gives the parties a right of action byexercising his right of jurisdiction, so that the interests of the parties are under the protectionof the justice.The theory of action in Roman law is the point of departure of the theoretical system ofcontinental civil procedure law. The concept of action in Roman law has been refined anddecomposed by the lawyer of the19th century; it was transformed into "the right of action" in the theory of civil procedure of modern continental law. At first, the notion of action focusedon "why the party may bring an action" and focused on the relationship between substantivelaw and procedural law. However, under the influence of the modern trend of civil rights,German and Japanese studies on the concept of action have diverted their point of departure,which is the relationship between substantive law and procedural law. The concept of the rightof action has been converted to a constitutional right. In addition, German and Japanesestudies have developed the modern system of action, which support the theoretical function ofthe right of action. It is the theory of the conditions of action in modern German and Japaneselaw, which controls the interests of action, the subject of action, the qualification of the parties,etc.For the modern French law, the theory of "right of aciton" has a somewhat differentdirection than German law. The right of action in French law is not abstracted to the highdegree of an objective right. It inherits the characteristics of the notion of action in Romanlaw; it focuses on the question "why the party may bring an action" and focuses on therelationship between substantive law and procedural law. We can say that French law andFrench theory of “right of aciton" broadly reflects the theoretical principles of the notion ofaction in Roman law.Firstly, based on The Law of the Twelve Tables, the edicts of the Roman magistrates,Institution of Gaius, Institution and Digest of Justinian and other documents of the Frenchtranslation of the Roman law, referred to studies on the notion of action of Roman law sincethe Middle Ages, this thesis focuses on a systematic study of the theory of action in Romanlaw. Secondly, based on the theoretical concept of the action of Roman law, from theacademic perspective of history, this thesis examines how the theory of action in Roman lawchanges to the theory of action in modern continental civil procedure law. Finally, this thesismakes some discussions and recommendations to improve the theory of action in Chinesecivil procedure law. This thesis is organized as follows:The First Article: A historical survey on the notion of action: The interpretation of Actionin Roman law(actio). This article focuses on the composition of the Roman theory of action,is divided into five chapters: the procedural structure, the formed system, the conceptualanalysis, the formal sources, and the reconstruction of actions in Roman law. The first chapter,the structure of procedural actions Roman studies the two phases of the structure of Romancivil procedure, and examines the different jurisdictions separated from the Roman magistrate and the Roman judge. The second chapter, the system of action in Roman law studies theactions in different periods, especially in their historical developments. The third chapter, theconceptual analysis of the meanings of action studies three senses of the notion of action inRoman law, these are the proceedings, the right of action and the subjective right. The fourthchapter, the formal sources of actions examines their two sources: the honorary actions andcivil actions. Different actions represent the different theories. The fifth chapter, thereconstruction of actions investigates the changes of the action system in Roman law made byEmperor Justinian. These changes have resulted in both positive and negative effects.The Second Article: The historical evolution of the concept of action: The developmentof the theory of action in Roman law. This article is primarily a research of action from theperspective of history. It examines the theoretical linkages between the theory of action inRoman law and the theory of action in modern civil law, and the relationships and distinctionsbetween the Germany-Japanese theory of civil procedure and the French theory of civilprocedure from the comparative perspective. By German jurists and French jurists, the theoryof action in Roman law has transformed into the theoretical system of Germany civil procedureand the theoretical system of French civil procedure. The theoretical system of Germany civilprocedure established “Action and the conditions of action" as the two main concepts to build itstheoretical system and resolve the issue of “Admissibility of action”. The French theoreticalsystem of civil procedure has established "right of action and elements of the right of action" asthe two main concepts to build its theoretical system and resolve the same issue.The Third Article: The Evolution of the notion of action: Improving the Chinese theoryof action. This article mainly studies the reference value of the theory of action in Roman lawand the theory of action in continental civil procedure law, which are profitable for theChinese theory of action. At the same time, this article suggests that the theoretical study ofaction should enforce "the conditions of action" that can strengthen the integrity of thetheoretical system of action, and the theoretical study of action should reinforce the conceptof "the conditions of action" that controls the interests of action, the subject of action, thequality of parts, etc. To establish the judicial review procedure of "the conditions of action",this paper proposes some reforms and improvements concerning the form of access to Justice,the procedure before trail, and the institutional protection of the right of action. |
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