Research On The Procedural Response To The Transfer Of Civil Rights And Obligations In Disputes In Litigation

On the basis of the concept of freedom of transaction in the market economy and the principle of autonomy of will in civil law,except for the special circumstances in which the parties are forbidden to dispose of the object of action or the civil rights in dispute according to the preservation procedure,the transfer of civil rights and obligations of the parties is not limited by the prosecution,that is,during the proceedings,the parties also have the right to deal with the civil rights and obligations of the dispute.The legislation of civil procedure also follows the principle of not restricting the transfer of civil rights and obligations in principle.The transfer of civil rights and obligations in dispute includes two situations: one is the transfer of civil rights and obligations in dispute caused by the death of the litigant,the merger or separation of the litigant;Second,the Civil Rights and obligations in litigation are transferred,which are not caused by the death of the litigant,the amalgamation or separation of the litigant.In the first case,because of the death of the assignor or the change in the form of existence,the successor to the rights and obligations often takes part in the proceedings,which is the general principle of succession in proceedings adopted by all civil procedure,there are consistent views in the legislation and practice of civil action.However,for the second case,there are two distinct procedures,namely,the principle of party's constancy and the principle of litigation succession.This paper is mainly aimed at the second case of the transfer of civil rights and obligations in civil disputes under the procedure should be discussed and studied.Article 249 of the interpretation of the Supreme People's Court on the application of the Civil Procedure promulgated and implemented on February 4,2015 stipulates: "In a lawsuit,the transfer of the civil rights and obligations in dispute shall not affect the qualification of the litigants as the subject of the lawsuit and their litigation status.".A legally effective judgment or ruling made by the People's Court shall be binding on the assignee.If the assignee applies to participate in the proceedings as a third party without the right of independent claim,the People's Court may grant permission.If the transferee applies to take the place of the parties,the People's Court may decide whether to grant or not according to the specific circumstances of the case;if the transferee does not grant the permission,it may be added as a third party without the right of independent claim,the principle of party constancy is established in our country,but it stipulates the principle of comparison and abstraction,which needs to be based on the further study of the procedural mechanism of the principle of party constancy,this paper makes a further analysis on the understanding and application of this principle from the perspective of Hermeneutics so as to make the principle of party constancy really play its function in our country.The principle of constant litigant is the principle of action under the modern concept of civil action to deal with the change of entity in the action,which gives the litigant who carries on entity disposition in the action the status of legal litigant and continues the action,the Res Judicata of the effective judgment eventually expands to the assignee of the disputed civil rights and obligations.On the basis of the summary of the procedure of civil rights and obligations transfer in dispute in civil action,this paper focuses on four aspects: the subject theory,the validity theory,the procedure safeguard theory and the application theory.The first chapter is a summary of the main study of the Civil Rights and obligations in dispute transfer of the definition and response to the main model.This part is the foundation of studying the procedure of the transfer of civil rights and obligations in dispute in civil action,and it focuses on defining the time,object and way of the transfer of the civil rights and obligations in dispute,it also focuses on the introduction of the principle of succession and the principle of constant litigant.The second chapter is the subject theory,the main research parties under the principle of constant parties to the issue of eligibility.This part focuses on the analysis of the evolution of the content of the party's fitness and the different viewpoints of the theory,and the influence of the party's fitness theory on the principle of the party's constancy,as well as the analysis of the party's subjective fitness under the principle of the party's constancy,it is proposed that the assignor is a legal person who is not a manager.On this basis,the author makes an empirical study of the principle of the parties' constancy in judicial practice by distinguishing the different objects of the transfer in litigation such as real right,creditor's right,intellectual property right,and property dispute,etc.,therefore,it is clearly pointed out that the expansion of the proper status of the parties can not be contrary to the substantive law and can not break through the relativity of debt,at the same time,we should exclude the application of bona fide acquisition.The third chapter is the validity theory,mainly studies the expansion of the validity of judgment under the principle of constant parties.This part includes the expansion of res Judicata and the expansion of executive power.The part of expansion of res Judicata focuses on the essence and basis of the expansion of the subjective scope due to the breakthrough of the relativity of res Judicata under the principle of the parties' constancy,how to determine the limits of the subjective scope of res Judicata expansion and other issues are discussed.In view of the current situation of the lack of supporting provisions on the constant principle of litigants in our country,the expansion of the subjective scope of enforcement and res Judicata begins with the relationship between the two,and on the basis of comparative analysis,this paper analyzes the legitimacy of the expansion of the subjective scope of executive power from the point of view of entity and procedure,in order to construct the procedure of determining,relieving and blocking the expansion of the subjective scope of executive power under the principle of constant parties.The fourth chapter is the procedural protection theory,mainly studies the procedural protection under the principle of constant parties.Procedural protection is the basis of the expansion of the judgment effect to the assignee.On the basis of analyzing the necessity of procedural protection,this part discusses the procedural protection of the principle of parties invariance from two aspects: The limitation of rights in the action of the assignor and the positive and negative aspects of the procedural protection of the assignee.On the basis of analyzing whether the right of disposition of the assignor is limited in litigation,we should distinguish whether the assignee knows the litigation system,distinguish the nature of the claim,distinguish the discovery time to deal with the abuse of the procedure.The procedural protection of the assignee is mainly embodied in the protection of the right to know the proceedings in advance,the protection of the right to a hearing in the proceedings and the retrial proceedings,the third party to withdraw the proceedings or hearing objection proceedings for relief.The fifth chapter is the theory of application,which mainly studies the judicial application of the principle of constancy of the parties.This part is based on the data statistics and sample analysis of 489 judicial documents concerning the principle of the parties' constancy,which have been tried since the implementation of the interpretation of the civil procedure law of our country,the trial situation and characteristics of the relevant cases are summarized and summarized,and a sample study of the issues worthy of attention in the practical operation is conducted,and the reasons behind the problems are analyzed,this paper tries to construct the relevant rules of subject's qualification,right guarantee,right realization and right relief,which are suitable for our country,so as to better realize the legislative intention of the principle.