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Study On The Action For Future Prestation

Posted on:2012-07-29Degree:MasterType:Thesis
Country:ChinaCandidate:B Q QinFull Text:PDF
GTID:2166330338959643Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
According to the theories of Civil Procedure Law, litigation is divided into three categories: action of performance, action for confirmation and action of alteration.The action of performance is divided into action for now prestation and action for future prestation. Although these prestations subjected to stipulation time limit or condition limit will not be admitted according to law until the end of oral debate,plaintiff can suit with the action for future prestation. Essentially,the action for future prestation is to relief plaintiff before the right of performance effects when such relief is necessary.The necessary in theory is known as interest of action.The action for future prestation connected with interest of action tightly expands the coverage of judicial remedy by elevating constraint from the right of claim while plaintiff needs relief in necessary,and also is an important manifestation of protection of human rights.There are few detailed studies about this topic on mainland up to now.The author tries to understand the function of interest of action in civil remedy by analyzing the relationship between the right of performance and the right of appeal, and to demonstate the connotation of the action for future prestation which aims to make contribulation to legislation and judicial practice.There are five parts in the paper except for introduction and conclusion:The first part is summary of the topic.Firstly,a case about noise pollution on environmental law of Japan is put forward to derivate question consciousness.Secondly,to interpret concept of the proposition and compare actions taken by different countries on the basis of the case. Thirdly,analyze concrete characters of action for future prestation.Lastly,make a discussion on procedural theory and system value referring to the proposition.The procedural theory expresses that a separation of civil right and litigation right,which makes litigation right become independent of civil right,and the interest of action as the nucleus factor of litigation right not only develops judge's subjective initiative,overcoming limitation of statue law,but also enlarges the scope of judicial remedy.The system value includes realizing the stability of rights and economic litigation.The second part makes a dialectical analysis on the relationship between right of performance and action for future prestation. In this part ,the author mainly tries to expound criticism on the censorship of accreditation in Chinese Civil Procedure Law by probing the relation between right of performance and litigation right, that is,the censorship has led to a narrow scope of judicial relief.In the end of this part,by making a comparsion with interest of action,the action for future prestation's connotation reveals.The third part discusses identification of subject matter in the action for future prestation.The adoption of identification standards effects the judgment's objective scope of res judicata.The traditional substantive law theory takes the right of performance as identification standard,however,under the action for future prestation, the duration or condition attached to the right of performance is in undue claim or not in valid,whether adopt such theory needs to be questioned.The standards on analysis are found to take procedural law theory when the right of performance is subjected to term or condition purely;and the replacement litigation takes new substantive law theory is better.The fouth part analyzes objective scope of res judicata under action for future prestation.The"future"means uncertain,that is, the objective scope such as the amount of compensation etc may become variable on account of change of circumstances.However,if the substantial legal relation is the same as the former,the latter shouldn't be accepted as a new action. The action of alternation adjudge in Germany Law is a good way to adjust such factors referred above.The fifth part discusses the specific types of the action.On the whole,it can be analyzed from two aspects:one is about typical examples;the other is controversial.Through the discussion of these two,the action for future prestation's function is more clear in judicial practice.
Keywords/Search Tags:action for future prestation, right of performance, litigious right, interest of action, subject matter, objective scope of res judicata
PDF Full Text Request
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