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Research On Conditions Of Litigation

Posted on:2012-08-25Degree:MasterType:Thesis
Country:ChinaCandidate:L J YaoFull Text:PDF
GTID:2166330335457194Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
The concept of conditions of litigation originated in the theory of civil law countries and regions, although it is hard to be found in the code of civil procedure law, the specific content of the theory played an important role in the trial practice. German and Japanese and China Taiwan's scholars have done the research for a long time, and it gradually matured during these years, but Chinese scholars rarely paid much attention to this field. In fact, there is related content of conditions of litigation in China's civil procedure law, such as jurisdiction, capacity of party and res judicata and other issues, which are scattered in the articles as conditions of prosecution, these elements are similar to conditions of litigation, but they can't play a unique role for lack of corresponding efficacy. This article will be based on the judicial circumstance, which is reflected in the absence of conditions of litigation, and the theory of conditions of litigation. The article will not only discuss the specific details of the theory, but also analyze the effect of applying conditions to lawsuit, and finally point out the method to construct the theoretical system of conditions of litigation in China, trying to make the demonstration be logical and sufficient.This article consists of four chapters as followed:Chapter one is a general discussion about the basic theory of conditions of litigation. First of all it elaborates the definition, the essence of conditions of litigation, and the category, pointing out that conditions of litigation is a prerequisite for rendering the judgment rather than a prerequisite for hearing the case, nor a prerequisite for bring a lawsuit. Then this part puts emphasis on the difference between conditions of litigation and other relevant conditions, it mainly explores the relations between conditions of litigation and conditions of the right to sue. Finally it reveals the importance of constructing conditions of litigation as well, hoping to increase the feasibility of demonstrating the theory.Chapter two is about the component matters of conditions of litigation, involving two aspects: general component matters and obstacle of litigation. As to the general component matters, this article tries to expound them from a view of the court, the parties and subject matter, almost of them have been recognized in Germany and Japan. In addition, obstacle of litigation will be specially discussed as a part in this chapter, because the other conditions of litigation must be investigated ex officio by the judge, but it must be investigated by the judge after the defendant defending the proceedings, hereby distinguished.Chapter three is about how to apply conditions of litigation to the trial, it involves the way of investigation, judgment criterion time, trial order and the effect of applying conditions, the last two issues are the highlights of this chapter. The trial order contains order between conditions of litigation and conditions of substantive judgments, and order among various conditions of litigation, but the trial order discussed here only concerns the rationality, not the legal binding effect. In addition, the effect of applying conditions has respect to the way of judgment and res judicata, and the two issues are unavoidable because any trial is bound to produce a result.Chapter four is about how to construct conditions of litigation in China. This part will not only analyze the judicial circumstance of lack of conditions of litigation, but also explain the necessity of the establishment, through borrowing the legislation from other countries, and combining with the reality of judicial circumstance, we could put forward the ideas of perfecting the system of conditions of litigation. Although the theory is learned from Germany, Japan and other countries, it is a selective migration based on the judicial circumstance of China rather than a mechanical migration in this paper, so that it can give prominence to the local characteristics.
Keywords/Search Tags:conditions of litigation, conditions of prosecution, conditions of the right to sue, interest of action
PDF Full Text Request
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