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Research On Interest Of Civil Litigation

Posted on:2012-06-16Degree:DoctorType:Dissertation
Country:ChinaCandidate:L Z KongFull Text:PDF
GTID:1266330395989324Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
Judging from the development history of civil litigation,as a mode of settling privatedisputes in society, with the functional scopes of litigation expanding, the procedural legitimacyof litigation is gradually emphasized. The Procedural characteirstics and the limitation of judicialpower have brought a need of interpreting way to demarcate the necessity of getting a courtdecision both in the theory and the judicial practice, whi"ch is called interest of civil litigation” inthe theory of civil litigation in Continental Law family. The concept of interest of civil litigationexpresses the notion that national should posses the necessity and interest of getting a courtdecision if he present a civil controversy to court. The establishment of the concept makes thelitigation more opening, which not only deepens and widens the theoretical researches of irght ofaction, standing and res judicata, but also balances the values of not being troubled by firvoloussuits and encouraging national to get help from the legal action.The most direct function of the interest of civil litigation is regulating the judicial flow tocope the social situation. In the context of judicial activism litigation becomes concrete practicewhich to realize the social functions to purse the interest of the whole society, more than Stylizedactivities to apply laws to facts. The interest of civil litigation with current legal irghts as itscenterpiece and requirements of society as its Radiation baseline, not only measures the gapsbetween the rights established by lawmaker and the need of real life, and further making up thecrack between them, but also keeps the judgments in civil litigation based on civil substantive lawadapting the complex society dynamically. For the sake of better settling disputes to safeguard thelegitimate interest of the parties, the research on the interest of civil litigation should be thelogical point of theoretical researches on litigation. Therefore, the research of this dissertationcenters around the structural theory and system frame related to the interest of civil litigation. Thedissertation consists of five parts which is organized as follows:Chapter I: The headstream and basic ideas of interest of civil litigation. This chapter combsthe three typical stages in the history of ancient Roman litigation by means of historical empiricaland analyzes the background factors of interest of civil litigation which has been put forward inmodern civil litigation. As a basic idea the interest of litigation has been in existence in ancientRoman litigation, which shows that any controversy presented to judicial organ must posses thenecessity of acquiirng the public relief which is the justified reasons of actio. The interest of ’’ancient Roman litigation was delivered in the form of “qualiifcation for the proper events,whichwas absorbed under the idea of the pirmitive natural justice of the life community. Later,with thedevelopments of social organization of Roman city-states from a loose confederation of tirbalgroups to a political administrative entity, judicial power originated from city-state impeirumimplanted the public interest gene of the maintenance of public order into the ideas of interest oflitigation. In the stages of Roman formula litigation and extraordinary tiral the ideas of interest ofcivil litigation developed the connotation of ethics justice which lays stress on social security bymeans of mandatory obligations. Forms of the ancient Roman litigations shows, that thedevelopment process of ancient Roman litigation from strict formalism to liberalization isessentially the formation of idea which links faith with moral behavior, and conception ofethicality to resolve disputes and specific performance obligations. The "corrective justic”ehidden in the conception of justice to correct an unjustness caused by the fact of injury and unfairbehavior is the basic position of ancient Roman litigation. The ancient Roman litigation isprotection of private interest at the core, shapes the traditional characteirstics of bipolarity,equality and coerciveness. The “intirnsic moral justification" of social members’ behaviorbecomes the major measuirng standard for countires to provide relief. With the change ofrelations of the civil society-political nation, the independence of modern jurisdiction, the binaryseparation system of substantive law and procedural law, and the germinating of legalsocialization, the interest of litigation came on the stage of modern civil litigation as a formalacademic concept what public nature is emphasized. The litigation interest becomes the mediumwhich highlights the public functions of the maintenance of social order hidden in civil litigation.Chapter II: The basic content on the interest of civil litigation. The concept of litigationinterest will be summarized as necessity and effectiveness that plaintiff forces defendant toresolve disputes through litigation and present his controversy to court to getting a decision onhis dispute in order to protect their pirvate interests. On that basis,this thesis elaboratesfurther the basic characteirstic of interest of litigation from the subject, object and content, aswell as the relations between litigation interest and litigation teleology, right of action andrequirements of substantive judgments. In shotr, the interest of litigation is the reflection ofthe civil litigation teleology in practice. We should set different cirteria in accordance with thedifferent purposes of suing for court. The interest of civil litigation distincts from otherrequirements of litigation, which is of more indeterminate extensional and plays an impotrantrole in playing judicial initiative as a interpretative tool of civil litigation system. Chapter II:The theoretical formulation of interest of civil litigation. This chapterfocuses on the interest of litigation as a interpretative theory of civil litigation system. Firstly,civil litigation interests are a legal compound interests including relieving interests,intermediary interests and refereeing interests. Secondly, from the social jurisprudenceperspective, the ideological basis of litigation interest is prohibition of abuse of irghts ofaction. The procedural thought of litigation interest considerations is effective use of limitedjuirdical resource. The methodology foundation for litigation interest is balance of interesttheory. The interest of litigation is the boundaires between protection and limitation of theirghts of action. So the requirement of litigation interest should legislatively look on meetingthe need of safeguarding the national rights as the preferred pirnciple. In that base,otherexternal social goals can be the justification to restrict irghts to sue in certain range. Finally,the logic changes of connotation that any civil controversy presented to court must posses thenecessity and effectiveness of getting decision from the deductive reasoning of irght relief tothe social purpose inference, cause the function of court to transform rfom the rightsprotection into appropirate dispute solution, furthermore, to shape good social policy andorderly operation of society.Chapter IV: The comparative researches on theoires and legislation of litigation interest.In this chapter, the litigation interest is considered as concrete system about requirements oflitigation. The comparative researchers on theoires, legislation and precedent relevant tolitigation interest in Germany, Japan, French and America suggest that the interest of litigationin the Continental Law family often be described as filtration mechanism to prohibit abuse ofirghts of action and as a intermediary interest of irghts to relief in Anglo-American family.Chapter V: Research on interest of litigation in China. In this chapter, the paperexamines the current situation of legislation and relevant judicial interpretations related to thelitigation interest and argues that there are some deviations in judicial practice which rejectsto give relief for undefined interests out of rights based on the traditional idea of rule of lawand fuzzes up the social interest goals in the considerations of litigation interest because of theinlfuence of politics to judicature. Additionally,the heairng and judging on litigation interestis unexpected as lacking clear theoretical direction and standard safeguard mechanisms, to theextent that the litigation interest becomes the pretext of distorting the justice tracks atdiscretion. For these reasons, combining the expeirence of other countries with our judicialpractice and the compound structures of litigation interest, the paper put forwards some proposals that how to perfect our investigation system and judicial discretion systemconcerned litigation interest to make full use of the policy forming ifxnction in the modernlawsuits and safeguard national rights. Firstly, we should establish the criteira and principlesfor investigation of interest of litigation; secondly, we can review the requirement of litigationinterest in two’stages; finally, the legislation should perfect the procedural safeguards systemof heairng including the style of tiral, principles of evidence collection and publicity ofdiscretionary evaluation when cases of interest are negative.
Keywords/Search Tags:Civil Litigation, Interest of Civil Litigation, Requisites For Protection ofRights, Judicial Activism, Balance of Interest, Right of Action
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