Study On Civil Judgment Res Judicata Transplantion

Law needs respect and final judgments need authority. If a final judgment is repealed and subject to retrial, it loses its effectiveness. The value of res judicata excludes excessive litigation and prohibits that two litigious parties bring a lawsuit again on the same issue, and save the judicial resource. The theory of res judicata has not been transplanted in Civil Procedure Law, in that the latter suit must be treated accordingly in light of the former has not been draw up. For the past few years, civil cases have been increasing, this has caused a lot of problems, for example, the court might hear a case that parties bring a again on a same issue, but the final judgments may differ from the former suit and the latter, Therefore it is time that the theory of res judicata be transplanted to Civil Procedure Law. Many theories and regulations of Civil Procedure Law conflict between the theory of res judicata, if these were not criticized, China's legal system would be gravely impaired. The whole dissertation contains five chapters.The Chapter 1, Introduction. This chapter describes the concept of res judicata, and prove that the theory of res judicata has not existed in our legal system through many practical cases. Tried to explain why the theory of res judicata has not been constructed through cultural and economical angles, expounds the value of res judicata, and criticizes the views that law can not be transplanted.The Chapter 2, Fact-finding and res judicata. The chapter analyses the thinking that epistemology was criticized in our academic field, measure the gap between the concept of epistemology at a philosophical level and in the practical legal system, and reappraises the value of epistemology in our legal system. We should promote the maneuverability of fact-finding in our legal system through establishing perfect pretrial procedure.The Chapter 3, Subject matter of civil action and res judicata. The chapter introduces the various theories concerning the subject matter of civil action, analyses the positive and negative aspects of the subject matter of civil action by precedent, and expounds the relationship between the subject matter of civil action and the objective scope of res judicata.The Chapter 4, Procedure guarantee, personal responsibility and res judicata. The chapter says essentially two things. The first thing is whether a judgment did not bring the subject matter of civil action has effect of judgment; The second thing is whether third party with an independent right to claim shoulder the duties of judgment has effect of judgment. Through analysis and debate, the reasoning foundation of res judicata should include the doctrine of procedural justice, and give parties the equal litigant position and rights. In a word, lacking just procedure, the judgment should not effect of res judicata.The Chapter 5, Retrial and res judicata. The chapter discusses three things including the function of retrial, causes of retrial and the subject of retrial. The function of retrial plays a role of interpretation theory. By relocating the function of retrial, we can explain the causes of retrial. The less causes of retrial, the more stable the judgment. The more causes retrial and abstract, those are on the contrary, so retailing and scientific classifying cause retrial is the most task in Civil Procedure Law. Thank fully, the court and procuratorate have the power to initiate a retrial. It should be abolished completely. Court and procuratorate have the power, it is not conducive to the rule of law, of the stability of the judgment. We should promote the right that retrial be initiated by the parties.