The Studies On Feststellungsinteresse

This thesis mainly argues that our civil litigation system should establish the action of confirmation,and lay down the concept of feststellungsinteresse from German law,which means the interest of action of confirmation.The theory of interest of action plays an importance role in civil procedure studies in civil law tradition,which works as a mechanism to balance interests between the State(the court of justice),the defendant and the plaintiff. And in action of confirmation ,feststellungsinteresse plays a much more significant role,which in turn determine the value and meaning of this concerning study.Including the introduction and the conclusion,the thesis consists of 6 parts,totally has 33,000 words approximately.Part one is the introduction,which introduces the importance of feststellungsinteresse,current concerning study conditions home and abroad.This thesis mainly uses the method of normal analysis,contain the content of feststellungsinteresse and related theories in civil procedure law.Part two puts out the issue of feststellungsinteresse,analyses the the action of confirmation and its interest of action--feststellungsinteresse.The action of confirmation palys an imperative role in the three styles of action,some legal scholar even calls it as"the prototype of litigation". Feststellungsinteresse is commonly seen in codes of civil procedure law in civil law countries and regions.Part three analyses the legal nature of action of confirmation and feststellungsinteresse.Interest of action has both procedural and substantive property,and therefore functions as the linkage of civil procedural law and civil law. Interest of action is a necessary component of actio,and develops with actio. Feststellungsinteress is more peculiar and complicated than interest of action of payment and formation,especially in the relation of feststellungsinteresse and proper parts of action of confirmation.Part four emphasizes on the criterion of the existence of feststellungsinteresse,along with some cases for example.In Japan and Taiwan of China,guiding theory argues that we should choose a) effect of action of confirmation,b)current necessity of dispute resoluted by adjudication and c)object of the action as the criteria.This party also concerns about the causes of the change of legal relationship,past legal relationship, denying legal relationship between other parts. Feststellungsinteresse of intermediate action of confirmation and negative action of confirmation are analyzed as well.Part five takes into account feststellungsinteresse in our country from the viewpoints of legislature and judicial practice.Compared with legislation in civil law countries,our legislation dose not regulate feststellungsinteresse,and even dose not differentiate the styles of action.Judges work without suitable activism.In a word,our Civil Procedure Law needs furture amendment to establish the criterion and order when confirm the existence of feststellungsinteresse of a litigation,and theoretical levels of judges requires promoted.Finally it comes the conclusion.This part summaries the content of this thesis in retrospect,and again repeats the importance of feststellungsinteresse and action of confirmation in the field of disputes preventing and resolution.