On Choice Of Foundation Of Right Of Claim In Civil Law

Foundation of right of claim in civil law means the legal norms that can support one of the parties to claim some kind of rights to the other party in civil law relationships. Foundation of right of claim is a basic concept and a kind of means of thinking that should be apprehended thoroughly and grasped assuredly. The theory of foundation of right of claim has momentous significance to the civil legislation and judicature. However, people do not pay enough attention to the research to the foundation of right of claim which it deserves. The phenomenon that a same fact consists with two or more norms requirements at the same time so as to all the norms can be used calls concurrence of articles of law. When the concurrence happens in civil relation, the party has the right to choose one of the concurrent articles of law to claim civil rights according to the facts of the case and his own need, what can be called choice of foundation of right of claim. The concept points out clearly and definitely the possibility and necessity for choice of foundation of right of claim, and it has a grand significance both in theory and in practice. How to choose the foundation of right of claim affects greatly the material and procedural rights of the party. Choice of foundation of right of claim has internal jurisprudence basis. The attribute of private law and the autonomy of private law decide the choice. In order to make a correct choice, a party must analyze the facts of a case accurately and apprehend the articles of law exactly, and think, observe, compare back and forth between the facts and the articles. Choosing a foundation of right of claim is a scientific and scrupulous legal intellection process. The choice of foundation of right of claim of a party need face judicial review. The choice and the review affect each other to some degree, but according to the attribute of private law and the autonomy of private law, the review should not affect the party's choice decisively. The legal results of choice should be burdened by the party himself.