On Civil Procedural System Under Transfer Of Rights Or Interest After Pendency

At present,the Civil Procedural Laws of many countries have provided the systems about how the original party and the transferee proceed when a party assigns his rights or obligations to a third party while the action is pending,and they have been come into practice.Based on the overall analysis of the legal provisions,case and theory on the continuance of the trial or the substitution,this paper systematically studies the qualification of the original party proceeding,the qualification and the ways of the transferee intervening,the procedure guaranteeing,the extension of binding effect of the final judgment to the original party and the transferee,the relives of rights and others,including my initiative viewpoints upon the above contents.Meanwhile,in the perspective of the procedure guaranteeing and the wholly resolving all relevant disputes through one lawsuit,this paper rationally suggests some points on improvement for drawbacks from the above provisions of China's Civil Procedure Law and the judicial cases.This paper is divided into 7 charters.Charter 1 is about the introduction.Based on the background and meaning of this subject,this part systematically combs and reviews about the research status on it at home and abroad,on the base of which it illustrates the innovation points of it and the important issues being resolved.Charter 2 addresses the research of the lawsuit mode after pendency.This section carries on a macro analysis of the original party continuing proceeding doctrine,the successor substituting doctrine and eclecticism,illustrates their Strengths and weaknesses.At the same time,it discusses the differences between the basic and crucial concepts such as continuance,substitution and the litigation taking-on of parties,the party change,change of complaint.This part should have a definition and premise effect on the research scope and deepening of the subject.Charter 3 discusses the qualification of the transferor and the transfee under transfer of rights or interest after pendency which is an important issue of this subject.At first,this part genaralizes the doctrine of the qualification of the party,analyzing the differences of the qualification of the party in civil litigation theory between two legal systems,suggests the original party as a “formal party”taking-on litigation under transfer of rights or interest after pendency.The second place,it illustrates the differences with respect to the natrue between the real right and the debt right,discusses cases about the transfer or assignment after pendency from Germany,Japan and Taiwai district and the effect of an scope of the subject matter in dispute and the transfer or assignment on the qualification of the transfee,on the basis of which it deptens their effect upon the qualification of the transferor and the successor while the real right or debt right transfers or assigns.Finally,it shows author's opinion for them and suggestions of improving their demrits while analyzing the usual doings and its merits and demerits of Chinese cases about the transfer or assignment after pendency.Charter 4 is about ways of the original party and the successor proceeding.It discusses specific routes and ways of the original party and the successor proceeding in order to attaining fairness and efficiency.Through provisions for ways of the party and the third party proceeding in civil procedure laws from two legal system countries,there are continuance of the original party,intervention of right,subordinate intervention and substitution of the party as to ways of the original party and the successor proceeding after pendency.Under each way,there vary in terms of procedural acts,rights,claims and others from the original party and the successor,which leads to the differences in their legal status.If there are claims and defenses between parties and successor,the original lawsuit between parties changes into mutual lawsuits among parties and successor.In order to overcome the imperfect provisions from China's civil procedure law as to ways of the successor proceeding,the subordinate intervention under joint litigation should be added,and should scientifically establish suit ways of a third party without the independent right to the subject matter of the action of both parties.Charter 5 is about procedural safeguards of the original party and the successor which discusses how due process should properly provides on the basis of resolving all relevant disputes through one lawsuit.According to due process,where life,freedom,property of parties and the third party bound by the judgment,they must be entitled to the opportunities of knowing a litigation,asserting a claim and defending for their legal rights and interest so that properly and timely exercising their rights and making judgment proper;In addition,“proper notice” and “hearing” must be included in the most basic procedural guaranteeing.Therefore,the original party and the successor should be granted with a variety of opportunities of taking part in litigation that have great impact upon their substantive rights and obligations so that they put forward to various defenses and evidence that have great effect on facts and claims in the final judgment,which is the basic requirements of procedural justice.The specific mechanisms of procedural guaranteeing is divided into procedural safeguards before judgment and procedural safeguards after judgment,the former mainly including notice of action and notice of court authority,the later mainly consisting of procedure of adjudication supervision,an action of a third party revoking the original judgment and an action of enforcement objection.Civil Procedure Law of China should add action notice before judgment.Charter 6 is about “binding on the original party and the successor of the original judgment”.It includes the res judicata of judgment,enforcement effect,the effect of issue preclusion,the effect of litigation participation and remedies of objecting judgment.Although binding effect of judgment is relative in accordance with the principle of due process,to some degree,it is very necessary to admit the extension of the res judicata to the third person to tend off confliction of modern judicial resources supply and demand and to avoid mutual conflictive decisions.The two legal systems both possess provision and practice of the extension of binding effect of judgment under assigning property right,debt right and mere subject matter after pendency,which nevertheless varies,esp.in terms of the successor's good faith.In addition,the successor bound by judgment should be endowed with an objection and remedies against defect decision damaging his or her substantive rights.Nowadays,these remedies mainly include the suit of retrial,adjudication supervision,the action of a third party to revoking judgment and the action of enforcement objection and others that are known as procedural protection mechanisms after judgment matching with procedural protection mechanisms before judgment(notice of action and notice of court authority).Civil Procedure Law of China should add compensation obligation for damage to the successor's rights and interest under assignment of rights or interest after pendency.Charter 7 is about “conclusion”.This section generally sums up this subject.On the basis of briefly reviewing the mentioned each charter's contents,this section comparatively discusses similarities and differences of them in two legal systems by taking procedure rules of the original party and the successor to proceed under transferring rights or interest after pendency depriving from American and German procedure laws as an example,and carries on research for the root of their differences in prospective of legal culture and judicial tradition.In the end,this section states,apart from absorbing better procedural rules under transferring rights or interest after pendency from foreign theoretical research,legislative stipulations and cases,should combine them with litigant traditional culture of China and improve procedure systems about litigant,proceeding protection,res judicata,the effect of issue preclusion and others.