On The Theory Of Civil Issue Preclusion

For time, the theory of res judicata has been the center of heated academic debate and study of the theory of former adjudication. The most sensitive issue, among other things, being the binding force of the court decisions on non-subject-matter issues. The traditional theory holds that the binding force should be limited within the subject-matter issues, leaving the theory of non-subject-matter issues diversified. In Chinese civil procedure, a concept of"former adjudication"exists, but with inadequate and unclear specific requirements and scope, etc. Conversely, in many western countries, the theory of civil issue preclusion is widely adopted, with each country making necessary amendments. The core of this theory is to avoid unnecessary and repeated trial on those already decided, if the fundemental requirements of procedural safeguard and the principle of good-will are met.This article is devided into introduction, the main part and conclusion part, with the main part including three parts.The preface gives a preliminary introduction to the theory of res judicata, pointing out the reason why the traditional choice sets its limit at the subject-matter only. This article consists of three major parts, the first part focuses on the jurisprudential analysis on civil issue preclusion. The theory of issue preclusion traces its origin back at western countries, but timely and inevitably adapted during the process of widely accepted and adopted by many other countries and areas. The author lays out the fundamental theories that are to dovetail into issue preclusion theory on the ground of comparative study.The second part examines the requirements, scope and exceptions of civil issue preclusion, draws out the systematic structure thereof and gives a reasonable expectation and forlook about the practical operation of the theory in china. The author holds that civil issue preclusion is a possible choice for china given specific enhancement and necessary adaption.The third part talks about the system inspiration brought about by issue preclusion on the amending process of chinese civil procedure, followed by identifiable obstacles and problems therewith. Based on that, the author thinks that a cumulative and step-by-step is a viable and sensible choice for china to build its own issue preclusion system. Moreover, surrounding system devices are the preconditions thereof.Lastly, at the conclusion part, after comparative study on various solution options of different conutries and relative theories, the author gives forward a concrete idea on the nationalization of issue preclusion in china based on the particular systematic and legal context thereof. Also, this article specifies admissible legislature on the subject, with the best hope of contributing a share to the theory of force of fomer adjudication in china.