Res Judicata And The Boundary Of Its Effects

It has been more than 10 years since the Civil Procedure Law of the People's Republic of China came into force. During this period, the international situation has changed a lot, as well as the domestic social structure. The backward of the China's Civil Procedure Law is becoming increasingly. The revision of the Civil Procedure Law has been brought into the legislation programme of the l lth National People's Congress. To restructure the Civil Procedure Law, we need to revise the antiquated old rules, and form new ones. Then, we can catch up with the universally accepted Civil Procedure Systems, and reflect some preconscious. In our Civil Procedure system, resjudicata hasn't been formed in the legislation, which has brought a lot of bad effects to the practice, especially in the retrial procedure. The abuse of retrial makes the definite decision lose its dignity, stability and damages the justice of the adjudication. As a result, some suggest that if we want to uphold the stability of the definite decision, we shall abolish the retrial. They regard the res judicata and the retrial incompatible as fire and water. This thesis is a preliminary introduction and analysis to res judicata and the boundary of its effects, and the relationship between res judicata and the causes and scopes of retrial. This thesis is also aiming to make some advice on the restructure of the causes of our civil retrial system according to the practice.The main contents of this thesis are as following: compared to the other decisions, the effect of a court decision is final, and the final force of such decision is embodied by the res judicata of the decision. The essential meaning of res judicata is that the definite decision has the essence of changing uneasily. There are a lot of different theories as to why res judicata has such effect of changing uneasily. These different theories explain res judicata in various points of view. According to me, The nature of res judicata, in view of jurisprudence, is a subjective effect with will, which arising from the ascertain of the objective fact and the subjectivity of the cognitive fact, also arising from the varies of social life, and the limits of the enforcement of laws. Therefore, the theory of party's self-responsibility, the need of stability for rules and order jointly form the basis of the justification of resjudicata. Resjudicata's has the effects of both positive and negative. These effects direct to the parties to a case as well as the court. The main effects of resjudicata is to block repeated actions and to control the retrials effectively. In view of the effects ofresjudieata, there are three aspects including the time, the subjective and the objective. The absence of resjudicata in our legislation causes a lots problems such as disobey of the definite decision. So it has a practical significance in our country to establish and improve the system of res judicata.Generally speaking, the relationship between res judicata and retrial is the unity of opposites. The forms of this relationship are as following: the contradiction of upholding the definite decisions and the unity of pursuing the fair judgments; the contradiction of the start-stop of rights mainly focused on the party's rights to litigation and the handling of its rights, and the unity of the foundation of the rights. In partial, though the effect of res judicata requires the decisions not to be changed easily, it doesn't mean the decisions cannot be changed at all. It's the reason why the existence of the causes of retrial is necessary, as it aims to change the definite decisions. However, the causes of retrial shall be bounded by the effect of res judicata. The relationship between the boundary of the effects of res judicata and the scope s and causes of retrial is that of mutual narrowing and limitation, which means the enlargement of the boundary of the one side will lead to the lessening of the other. Therefore, we need to keep balance of them. To restructure our system of the causes of civil retrial, firstly, we need to advance our guidelines of legislation according to the theory of resjudicata, and abandon the view of correcting mistakes whenever discovered and the view of judging a decision particularly upon the objective fact. Secondly, we need to strictly restrict the undue intervenes of the public authorities to the private rights. That means as to the civil retrial, the causes of retrial lodged by the court or the prosecutor shall be refused, the object of retrial derived from the causes of retrial shall be limited to the decision itself, and the causes of retrial shall be expressly stipulated by law so that it can be dealt with properly in practice.In many ways, this thesis is referred to a lot of the thoughts, views, theories and the practical experience of both China and the other countries. As this essay suggests, resjudicata is a very important litigation system, we need to attach importance to the establishment of the system of res judicata. Although resjudicata and retrial looks contradictory to each other in their face they are unity of opposites in essence. Only if we understand and regulate the causes and scopes of retrial on the basis of the boundary of effects of res judicata, we can get balance eventually between the fully enforcement of res judicata and the proper operation of civil retrial.