Study On Some Issues Of Right Of Formation

Right of formation should mean the right holder, based on the agreement of both sides or law, has the right to declare his unilateral will which need to be known by the adversary, and according to this unilateral declaration of will, one can make the legal relation between the both sides take place, alter or eliminate.Before "right of formation" is put forward, scholars got used to classified the right acknowledged in law into right of control, right of claim and right of pleadings. The development about the theory and practice in procedure law has resulted in forming the concept of the right of formation. Emil Seckel deduced and summed up two kinds of logic methods in integrated application on the basis of forefathers' research in 1903, put forward the concept "right of formation", with creative, brief and appropriate words, and classified it tightly, indicated its essence, probed into the question about its taking place, altering, transferring and eliminating etc. Emil Seckel's theory expand the categories of right, make the system of right to be more intact. German jurist Hans Dolle calls it discovery on law science.Because the formulation of the theory is to satisfy the need to develop the procedure law theory at first, but not on the basis of summary that practice develop, each concrete right of formation is different to others. So if we want to discuss the value orientation, we must rise the value to a quite abstract height. Fair, efficiency and freedom are the basic values of civil law. The balance and conflict of these values exist in every parts of it. We can't say one kind or several kinds of these basic values are the unique values of right of formation, but we can say it's unique how to carry on these values. The discussion of this article is just based on this understanding. The design of the right of formation, really have function of simplifying and fixing the legal relation as quickly as possible, but this kind of understanding is not the question all. Right of formation may be divided into the legal right of formation and agreed on the right of formation. The later is based on the party autonomy, but the former is to correct out-of-balance legal relation between the two sides with obvious mandatory, which have no relation with special social status of the weak.The scholar has two kinds of views mainly about the nature of right of formation: Right or power and function. Right of formation should belong to a kind ofindependent right but not powers and functions.Right of formation has the following characteristic :(1) the content of the right is that holder can make the legal relation between the both sides take place, alter or eliminate according to this unilateral declaration of will; (2) The object of right of formation is a civil legal relation; (3)There is no relative obligation idea to exist to right of formation; (4)There is no possibility encroached on by relative people to right of formation; (5) It usually can't be separated with the legal relation based on and conveyed alone; (6) Right of formation usually can only exist during a certain period, which should be regulated by law unitedly.According to different standard, right of formation can be classified as different rights, such as simple right of formation and right of action of formation, etc.To different classification of the right on the theory, the representative view is right of formation should belong to a kind of independent right, just like right of control, right of claim and right of pleadings. It comes from experience but not logic. So, the distribution on logic of this kind of classification, is not important as we imagine. With the development of social life, perhaps the new right type will also appear, this makes right system of the civil law become an open system.Right of formation take legal effect through exercising, generally speaking, form right can produce and render a service through the right holder's own enforcement, but under the exceptional situation, law special some regulation that right of fo...