The Principle Of Ne Bis In Idem In Civil Proceedings

On the basis of the historical and comparative approach, the author would like in this dissertation to relatively comprehensive analyze and discuss the basic concept, fundamental value and standards for determination of the principle of ne bis in idem . Furthermore, the author puts forward his suggestions on perfecting Chinese system, after the illumination of the theory of subject matter, litigants and res judicata, and analysis of typical cases.The dissertation is categorized into six parts.The first parts focus on the basic concept of the principle of ne bis in idem by the comparison among the ancient Roman law, the continental system and common law system. In this dissertation, the author regards that the basic concept includes two parts: the first one is to prohibit simultaneous two litigations between the same parties upon the same matter; the second one is to prohibit re-litigation after the decision on the same matter which has been finalized between the same parties.In the second part, the fundamental value is discussed by the analysis of the function of the principle of ne bis in idem. To avoid repeatedly re-litigating, controversial judgments and promote economic, the principle of ne bis in idem is reflected by the idea of pursuit to procedural peace, safeguarding the authority of justice system and keeping the economic of litigation.The author discusses the general relationship between the principles of ne bis in idem and res judicata in the third part on the basis of the analysis of the theory of res judicata's nature. It is very immediate in function and goal between the two systems. However, neither of them is covered by the other. They are crossed each other in fact. They have different characters and undertake the same task to safeguard the order and promote the economic of litigation.The forth part proceedes the research on the standards for determination and relative doctrines of the principle of ne bis in idem in common law system. Res judicata including claim preclusion and issue preclusion, together with the doctrine of abuse of process, collaboratively play the role of prohibiting the subsequent litigation. To prohibit re-litigation between the same parties on the same matter which has been decided by judgment depends upon the doctrine of res judicata, while abuse of process is to prevent the simultaneous two litigations on the same matter between the same parties.The standards for determination of ne bis in idem in continental system are discussed in the fifth part. In the continental jurisdiction, the standards for determination of ne bis in idem follow two sub-doctrines: one is the same party, the other is the same subject matter. On respect of the different understandings of the subject matter, and also due to the different thinking approaches, the application of the principle of ne bis in idem in continental jurisdiction is narrower than that of in common law system.In the sixth part, the author puts forward his suggestions on perfecting the principle of ne bis in idem in China, on the basis of the summarizing and analysis of typical cases. The main reason for that the application of ne bis in idem in China seems what a mess is the absence of the rules in legislation, and the different understandings of the subject matter of litigation. Thus,the way to construct the system of subject matter of litigation , res judicata and to improve the system of litigants are the best choice to perfect the principle of ne bis in idem. Also, it should be cautious in practice to protect the procedural rights of litigants with the application of the principle of ne bis in idem.