| Although the rule of pre-determination effect has a long history in reviewing the norms of civil procedure in China,it is obvious that the unique rule of Chinese civil procedural law,pre-determination effect,is still confronted with practical problems such as unclear theoretical basis,multiple interpretations,inappropriate procedural norms and different application of trial.Its theoretical origin lies in the unclear nature,basis,applicable elements,effect,subjective and objective scope of the pre-determination effect.This paper focuses on the nature,basis,application elements and effect,subjective and objective scope of the pre-determination effect,and relies on the existing theoretical results and practical experience in China.Finally,combined with the intellectual resources of comparative law,this paper systematically combs and reasonably defines the theoretical composition of pre-determined effectiveness.In addition to the preface,this paper is divided into five chapters:Chapter one: The nature of pre-determination effect.The conflict between academic propositions and the existence or abolition of legislative norms makes the debate on the nature of pre-determination effect quite sharp.In the current academic field,the theory of res judicata,the theory of contention effect and the theory of proof effect are formed around the nature of pre-determination effect.Based on the retrospect of the former Soviet Union's pre-determination effect and the brief review of the legislative history of China's rule of pre-determination effect,and referring to the doctrine of civil procedural law in the continental law system,and on the basis of the existing rules and judicial practice of pre-determination effect in our country's law,there is a heterogeneous relationship between pre-determination effect and res judicata effect,which is in common with adjudicative effect.As for the positioning of the nature of pre-determination effect,the existing theories,whether regarding it as res judicata,contention point effect or proof effect,are too simplistic and abstract,neglecting the abundant forms of pre-determination effect in specific judicial application.Therefore,it is necessary to adopt a typological thinking path,with the reference of the system of adjunctive effect of judgment determined by the continental law system in comparative law.Through the micro-examination of the judicial application of the pre-judgment effect,this article advocates that the nature of the pre-judgment effect should be positioned as the affiliated effect of the determination of the judgment,and stand side by sidewith the inherent effect of the res judicata and other judgments.Specifically,the pre-determination effect covers the types of contention effect,participation effect and proof effect because of its diversified connotation.Accordingly,the effect of pre-judgment can be defined as the effect of the fact of res judicata in the determination of the judgment of the pre-judgment on the judgment of the post-judgment.At the same time,the pre-determination effect in our country's law can be mainly divided into the form of effect corresponding to the contention effect and the participation effect.Therefore,the pre-determination effect can be specifically divided into the contention type pre-determination effect and the participation type pre-determination effect.Chapter two: Exploration of the basis of the effect of pre-determination.There are differences between the basis of the effect of pre-determination and the stability theory of law.In the basis theory of the effect of pre-determination,the stability of law is not at the core.At the same time,from the perspective of comparative law,the theory of legal stability can not be identified as the main basis of contention effect and participation effect.In the case of contention effect and participation effect which are common to the pre-determination effect,the first consideration is not the principle of legal stability,but the principle of good faith and procedural safeguard.Pre-judgment effect is the extension of the principle of good faith in procedural law at the level of judgment effect.From the perspective of explanatory theory of civil legislation,the principle of good faith should be one of the important bases for the effectiveness of pre-determination.Its rationale lies in: firstly,the obligation to urge the parties to promote litigation is embedded in the effectiveness of pre-determination;secondly,the effectiveness of pre-determination reflects the principle of Estoppel in litigation;thirdly,the effectiveness of pre-determination implements the principle of invalidation of power and function in litigation.The contention effect and participation effect are in accordance with the principle of procedural safeguard,while procedural safeguard is closely related to the principle of self-liability.Correspondingly,procedural guarantee is also an important pillar in the theory of the basis of pre-determination effectiveness.Procedural safeguard and self-liability principle play an important guiding role in the applicable elements and effects of contention and participation.The effectiveness of contention is based on the sufficient attack and defense between the parties involved in the important contention,and the substantial participation of the participants in litigation is also an important factor for the effectiveness of participation in the auxiliary participation occasions.At the same time,some cases in China'sjudicial practice also prove that the concept of procedural safeguard is an important basis for delineating the scope of pre-determined effectiveness and applicable objects.Chapter three: Applicable elements and effects of pre-determination effect.The applicable requirements of contentious pre-determination are as follows: the main contentious points which can influence the result of judgment;the parties have fully disputed the main contentious points;the court has made substantive judgment on the contentious points.Whether the two litigations are equivalent in the interests of substantive litigation is not necessary as one of the elements,but should be considered in the aforementioned "the parties have been in actual dispute" and "the court has been in substantive judgment".At the same time,whether it is the party's claim or the court's direct invocation of the contentious pre-determination effect according to its authority,the court should decide whether the res judicata has contentious pre-determination effect after considering the above three elements.As far as this evidence is concerned,the opposing party can still shake the judge's evidence by negating or attacking the above three elements in the subsequent appeal,and ultimately force the judge to abandon the application of contentious pre-judgment.This is significantly different from res judicata,because under the effect of res judicata,the court obviously does not allow the parties to disputes in the subsequent appeal whether there is a retrial cause that should be excluded,but should directly apply the rules of res judicata to adjudicate,and the disputes about the determination of res judicata in the former appeal can only be entrusted to the retrial procedure for relief.Article 93 of the Interpretation of the Civil Procedure Law stipulates that if the parties have contrary evidence enough to be overturned,the court may exclude the application of pre-determination effect.The understanding of this rule can also draw on the ideas of judicial practice and academic research in Taiwan,and link this rule of evidence with the blocking effect of contention effect.Specifically,the time limit of "contrary evidence" in the rules should be limited.Evidence after the benchmark time of contention point effect and evidence that can be presented by the parties before the end of the speech debate on the facts of the preliminary appeal should not be presented in the subsequent appeal.The applicable scenario of participatory pre-determination effect is that when a third person assists in the participation,the participant and the party assisted by the participant cooperate to make litigation action,and for the purpose of protecting the interests of both the parties and the participants,they should bear the result of the judgment as a whole.As a result,participants may not claim improper judgment of the appeal against the party assisted by them.Its effect should be that in the lawsuit between the participants and the respondents,the court of appeal should be bound by the judgment of the determination of the appeal,rather than a contradictory judgment.However,in the case of exceptions,participants may claim to participate in the defense of exclusion of validity.Consistent with the validity of the contentious pre-decision,the plea of "unable to propose an attack defense method for the reasons of the participants" proposed by the parties does not point to the appropriateness of the conclusion in the judgment,but only to the validity of the conclusion,which means that in the subsequent appeal,the participants can not confirm the fact that the judgment has been confirmed by overturning the pre-appeal through assertion and proof.It can be said that,as far as the effect is concerned,the participatory pre-determination effect and the contentious pre-determination effect are different in application occasions,but ultimately the same way.Chapter four: Definition of the objective scope of pre-determination effectiveness.The objective scope of pre-determination effect refers to the determination of which judgments in the reasons of judgment can produce pre-determination effect,which mainly focuses on the contentious pre-determination effect.Whether discussed by foreign academics or put forward in our judicial practice at present,the main criteria for judging contentious points actually belong to the objective scope of contentious pre-determination effect,which is closely related to the identification criteria of the object of action and the scope of defense.The identification criteria of the main contentious points should be determined first,and secondly,what are the identification criteria of the object of action? Only then can we identify the facts that lead to the occurrence of a specific legal relationship and what kind of evidence should be used to prove it.Once the object of action is determined,the court can clarify to the parties,through cooperation with the parties,which disputes can be included in the scope of the main points of contention in the proceedings.Therefore,in defining the objective scope of the pre-determination effect,this paper focuses on the following three aspects: First,on the basis of a brief review of the theoretical evolution of the object of action in the continental law system,it puts forward the interactive relationship between the objective scope of the pre-determination effect and the theory of the object of action,and combines the current development of the theory of the object of action in China.In the judicial practice dominated by the old substantive law theory,the contentious pre-determination effect still has its application space;secondly,on the general basis of factual classification in civil litigation field of continental law system,the author advocates that the difference between dispositionpower and judicial power in civil litigation structure of continental law system determines that contentious pre-determination effect should be mainly issued at the level of factual contention.To play a role,general legal disputes should not be the object of application of contentious pre-determination effect.In the research pedigree of civil procedure law,although the theory of contention effect in Japanese law draws lessons from the system of contention exclusion effect in Anglo-American law,in the construction of civil procedure in common law system,the parties have more initiative in legal contention,and the contention exclusion effect is widely applicable to legal contention.Within the framework of continental law system,the parties have less initiative in legal disputes.As far as the macroscopic proposition of whether legal arguments can produce pre-determination effect is concerned,we should be cautious in denying that some legal arguments can be included in the objective scope of contentious pre-determination effect,besides considering individualization.At the same time,whether it is participatory or contentious,it needs to be clear what is the core element of "the main points of contention that can affect the result of the judgment".Besides the important function of implementing the principle of centralized trial in the civil procedure embedded in the contentious consolidation procedure,because the contentious consolidation procedure is the party concerned.Fully presenting disputed facts,litigation claims and corresponding evidence provides an appropriate institutional container.At this stage,the parties and judges coordinate to refine,fix and even limit the points of dispute,thus providing planning and possibility for the follow-up to launch full offensive and defensive around the main points of dispute,which also weighs the main points of dispute for the judges of appeal.It has been fully disputed by the parties,which provides guidance for the application of the prerequisite validity.At the same time,the enrichment of the dispute arrangement procedure also provides an important procedural guarantee for the parties to avoid the sudden attack of litigation,which further enhances the expected possibility of the parties to the result of the judgment and the scope of the effect of the judgment,and becomes an important institutional guarantee for the legitimacy of the binding effect of the pre-determination effect in the subsequent appeal.As far as the possible pre-and post-related litigation is concerned,it is crucial for the judges to identify the objective scope of the pre-judgment effect.Chapter five: Discrimination of the subjective scope of the pre-determination effect.The subjective scope of pre-judgment effect is to answer which subjects should be bound by pre-judgment effect,and which subjects can invoke the pre-judgment effect of pre-judgmentfacts in litigation.Referring to the principle of relativity of res judicata and considering the basis of pre-decision effectiveness,the principle of relativity should be followed in both contentious and participatory pre-decision effectiveness.Combining with the typification analysis of the third party system in our country's law,the effect of participatory pre-determination only exerts binding force on the occasion of auxiliary third party.The subjective scope of contentious pre-decision effect should abide by the principle of relativity.However,since the expansion of negative contentious pre-decision effect will inevitably shake the res judicata for the third party,it is necessary to extend the contentious pre-decision effect to the first party affected by the expansion of res judicata in order to achieve the unity of dispute resolution and fairness between the parties.Three people. |
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