The Standard Of Defining "Idem" In The Principle Of Non Bis In Idem

The principle of non bis in idem is a principle with a long history. The principle reflects the rules of law objectively and the value of civil litigation accurately. In modern, it still displays its great vigor and scientific role. However, in legislation, it lacks of clear specifications and operability; in the process of judicature, the principle also lacks of precise standards of applying, which led to many problems arising.To accurately apply the principle of non bis in idem, we must first define what"idem"is. There are many academic disputes in the definition of the principle of non bis in idem, but it is without disputes that the principle of non bis in idem should be present in two stages: pending action and res judicata. The principle of non bis in idem in the stage of litigation system has a close contract with the basic theory of subject matter of litigation. The principle of non bis in idem in the stage of res judicata is closely linked with the scope of res judicata. Common Law and Civil Law take quite different ways in legislation and judicature of the principle of the non bis in idem, from which China can draw lessons in future.The rules in legislation are incompleted in the principle of non bis in idem in China, and it is confusion in the standard of"idem"in judicature. How to choose appropriate theory from numerous and complex theories, how to build a reasonable standard by considering other factors at the same time, is considerably important.The author's main points: considering the study of theory and practice of judicature in China, the theory of subject matter of litigation should choose the theory of the previous substantive law; the scope of res judicata should be ruled by the traditional theory of res judicata. In judicature practice, the standard of defining of"idem"in the stage of action should be"the parties +subject matter of litigation +main point of contention point"; in the stage of res judicata, the standard of defining"idem"should be"traditional theory of res judicata+exception". In legislation, it needs modification in the rules of prosecution, withdrawing an accusation and retrial, which will help the standard of defining"idem"works smoothly. This paper, which includes forty-eight thousand words, divides into five parts:The first part introduces the origins and developments of the principle of non bis in idem from the perspective of historical analysis. By comparing with different theories, it concludes that the content of the principle of non bis in idem should include two stages: pending action and res judicata. By comparing non Bis in idem with related concepts, it makes clear of the extension of non bis in idem.The second part analyses the standard of defining"idem"in the pending action stage. First, it summarizes different theories of defining"idem"in pending action. Then , it analyses and comments on different theories. The core elements of the standard: the parties, subject matter of litigation and the main point of contention .whether the three constitute the standard of defining"idem"and what role the three play, the paper has discussed about that. At the end, it discusses the standard of defining"idem"in the pending action and holds that the reasonable standard of defining"idem"should be"The parties+ subject matter+ the main points of contention".The third part analyses the standard of defining"idem"in the stage of res judicata. First, it introduces the traditional theory of res judicata and its limitation. Then, it introduces the theories of expansion of res judicata and their comments. Issue preclusion validity is introduced and analyzed. Finally, it makes comments of the old and new theories, and on this basis, it concludes the reasonable standard of defining"idem"in the stage of res judicata.The fourth part introduces the litigation of extraterritorial. First introduces the litigation of the common law. The system of non bis in idem is composed of rules of res judicata and abuse of process. The standard of defining"idem"in common law has a close relationship with cause of action and contention points. Besides, the judge's discretion is a significant factor for defining"idem". Then, it introduces the litigation of the civil law, which is mainly about the litigation of Germany, Japan and China's Taiwan District. It concludes that, in civil law, the parties and subject matter is the standard of defining"issue"in action. In civil law, the scope of res judicata ruled in the traditional theory of the res judicata is the standard of defining"idem"in the stage of res judicata. (There are many exceptions in litigation). At the end, it introduces the inspiration from the litigations of extraterritorial.The fifth part builds the standard of the defining"idem"in China. First it comments on the non bis idem in litigation and judicata practice. It lacks clear definition"idem"in litigation and it is confused in applying standard of defining"idem". Then, it analyzes the principles, which should be obeyed while building the standard of defining"idem", which includes justice and efficiency, practical and combination of principle and flexibility. It should make a clear choose of the basic theory before building the standard of defining"idem". The theory of subject matter of litigation should be the previous substantive law, and the theory of res judicata should be the previous theory. In the stage of pending action, the standard should be"the parties +subject matter of litigation+ the main points of contention"; in the stage of res judicata, the standard should be the range ruled by the previous theory of res judicata. In litigation, it should modify the system of prosecution, withdrawal an accusation and retrial, to guarantee the application of the standard of defining"idem".