The Study On Litigation Status

Based on the perspective of comparative law,this paper mainly discusses the theories,norms and precedents of Litigation Status in the countries or regions of civil law represented by Germany,Japan and Taiwan.On this basis,combined with China's norms and judicial examples,this paper respectively discusses the theoretical reference value of the opening of Litigation Status for the reform of China's filing system,the reference significance of the important effectiveness rules of Litigation Status for correcting and improving China's relevant norms and practices,and the Enlightenment of the ending of Litigation Status for China's associated system.This paper consists of "Introduction","Chapter ? The relationship and significance between Litigation Status and Chinese law","Chapter ? Basic theory of Litigation Status."," Chapter ? The opening of Litigation Status," Chapter IV The effect of Litigation Status "and "Chapter ? The termination of Litigation Status ".In addition to "Introduction","Chapter ? The relationship and significance between Litigation Status and Chinese law","Chapter ? Basic theory of Litigation Status ",the opening,effectiveness and ending of Litigation Status in the rest chapters are all based on the ideas of "paving the way for academic and comparative law","summarizing the problems of Chinese norms and practical cases","filling the loopholes of Chinese norms and correcting the rules".Introduction This part briefly explains the reason for writing this article,and holds that the concept of "Litigation Status " has not been used in our national legislation since the beginning,which indicates that the legislator lacks systematic cognition of Litigation Status,which leads to different disposal of judicial practice.Chapter ? The relationship and significance between Litigation Status and Chinese law This chapter describes how the theory of Litigation Status is related to the law of our country.There are two propositions in Litigation Status :the opening of Litigation Status and the effectiveness of the system of action.Because filing has a "valve" meaning for the opening of civil procedure in our country,which is connected with the opening of Litigation Status,the research on the filing system in our country can be carried out under the theoretical background of the opening of Litigation Status.Its function of integrating the legitimacy evaluation and rational evaluation of Litigation Status has a reference significance for the reform of civil filing system in our country.In addition,the Litigation Status has the function of coordinating the effectiveness of a series of substantive laws and procedural laws,which can be used for reference to integrate and coordinate the relevant norms of China's law.Chapter ? Basic theory of Litigation Status This chapter explains and combs the concept origin and institutional changes of Litigation Status Department.The concept of Litigation Status Department originated from German law.After the translation and transplantation of Japanese law,the late Qing Dynasty and the codes of the Republic of China and Taiwan,the Chinese expression has fixed.During the process of concept translation,the related system also changed.The comparative law display in the following article will be specially arranged.In addition,this chapter introduces the theoretical structure of Litigation Status Department.In principle,Litigation Status department only takes place in the domestic legal domain.In the domestic courts,the applicable Litigation Status procedures apply to the cases accepted.The same case belongs to different courts at home and abroad or within the legal domain,and there is no prohibition of double prosecution.In the non Litigation Status process,there is no Litigation Status Department.In the opening time of Litigation Status Department,there are petition submission,petition acceptance and petition service There are three divergent views: the effectiveness of Litigation Status system can be divided into the effectiveness of substantive law and procedural law,the effectiveness of the parties and the effectiveness of the court to be sued.Chapter ? Litigation Status opening.This chapter reviews the different legislative and academic viewpoints of the opening of Litigation Status,and analyzes the influence of different viewpoints on the litigation system.After a comprehensive comparison,it is considered that the service of petition as the opening node of Litigation Status meets the requirements of the nature of effective Litigation Status and the protection of the defendant's procedure.On this basis,after combing the historical evolution of the filing acceptance system and the actual functions of the filing court,it is believed that the pursuit of China's unique "separation of the filing and trial" has given birth to the filing acceptance system,but the situation that the original filing and review functions of the filing court are developing towards the direction of virtualization and alienation shows that whether or not the filing and acceptance system decides whether or not the proceedings are opened does not conform to the basic principle of the opening of the Litigation Status In principle,the concept of "Filing" is no longer used,and the filing court is renamed "Case Registry".Chapter IV The effect of Litigation Status this chapter discusses the important effect of Litigation Status.It mainly includes the interruption of limitation of action,the prohibition of double prosecution,the constancy of parties and the constancy of jurisdiction.On the basis of sorting out the resources of comparative law,combining with the norms and practice of national Litigation Status,the paper mainly demonstrates the following views and procedural rules.If the petition submitted by the plaintiff meets the conditions of prosecution,the rules of the Litigation Status is still applicable,and the private petition with interruption effect occurs at the initial submission.There should be no longer a distinction between the prohibition of double prosecution as a force of action and the objective effect of res judicata.The basis of the distinction lies in the fact that the prohibition of double prosecution in the Litigation Status system aims to seek one-off settlement of disputes,avoid multiple lawsuits of the parties and ensure the stability of the proceedings.The objective scope principle is limited to the content of the main text of the judgment,and the "scope" in the dispute entity is less than the whole dispute event covered by the prohibition of double prosecution in the Litigation Status system.The allocation of jurisdiction is designed to facilitate the court's first instance and balance the burden of each court's acceptance of the first instance cases.In theory,it has no impact on the substantive trial of the case.The jurisdiction of the effectiveness of Litigation Status should be constant from the beginning of Litigation Status.The procedure stage of constant application of the parties is from the beginning of the Litigation Status system to the end of the oral argument.After the end of the oral argument,the occurrence and ownership transfer of the original object of action is a new category of action,which does not apply to the constancy of the parties.In order to protect the interests of the assignee of the object of action participating in the Litigation Status,the registration system of the Litigation Status system and the notification system of the court should be established,and the parties can also apply for the assignee to participate in the Litigation Status.The acquisition in good faith In case of conflict with the parties' constancy and the expansion of res judicata,the ownership shall be determined by the action of objection to execution,and the effective judgment can only be countered when the transferee has "double good faith"(no knowledge of the Litigation Status system,no right to dispose).Chapter ? The termination of Litigation Status.One is the determination of the judgment,which is equivalent to "the judgment has legal effect" in China's law.Second,reconciliation in Litigation Status.For the sake of Litigation Status mediation in China,for the reasons of Litigation Status culture and judicial policy,China has been in the mode of "mediation trial" for a long time,and the settlement of mediation is not in the supplementary position of judgment.Changing this situation may require a long-term judicial transformation.3.In order to withdraw the action,if the plaintiff applies for withdrawing the action before the court debate without the consent of the defendant,the plaintiff shall apply for withdrawing the action in the Litigation Status department with the consent of the defendant in the middle of the trial period or after the first trial.The Department of second instance is the continuation of the Department of first instance.In the second instance,the plaintiff's withdrawal must be agreed by the defendant.After the plaintiff's withdrawal is allowed,the plaintiff is prohibited from further prosecution,except in the case of identity relationship.The conclusion This part based on the previous research and makes a concluding statement.