On The Relationship Between The Right Of Action And The Litigious Right

Being hailed as the "Goldbach's Conjecture" in the field of civil litigation law, the difficulty of the theory of the right of action is self-evident. In the study, we find that our understanding of the right of action is different for the differences in language expression and shows for two different trends. For one thing, since the mid-1980s, the exploration of the origins and theoretical criticism in the theories of the right of action of the former Soviet Union and modern Western, bring our research into theoretical discourse system of the Western. For another, inheriting our legal cultural tradition borne by the word of the right of action, we take the study in the face to the context of people's lives. By the differences in these two aspects, in the civil litigation ambition prospect which is constructed by the right of action, the right of action was considered by the wishful thinking that it can protect substantive rights from encroachment and was the most powerful tools to protect their rights in the hands of nationals, then the protection of the right of action is the protection of the substantive rights. So, as the exact meaning of the right of action becoming complicated,specialized and theorized in the continuous influence of these two aspects, the function of right of action has become conceptualized and common-sensed. The theory has constructed its own dilemma.If we want to have a breakthrough in the dilemma, we need to re-inspect the development of the theory. In the record of Gaius a jurists of Roman we see such a story about the "right of action", talking about the "the ancient Rome's vites". Someone brought proceedings because of his grapes had been cut down. Then he lost the lawsuit just because in his action he had used the word: "grape tree"(vites). The law of the Twelve Tables is only loosely defined the "plant", so he should use the "tree"(arbores) instead of "grape tree"(vites) in his action. In fact, the story contains all the later development possibilities of the concept of the right of action. The story in which one have the "action" for the "arbores" while have not for the "vites" means: First, he was entitled to "arbores", but not to "vites"; Secondly, He could get government relief according to "action" about "arbores", but not "vites", "ubi ius, ibi remedium"; Thirdly, he would be success under the name of the "arbores", but not under the name of the "vites", "ubi ius, ibi remedium". This downturn and the extension of the three-tier implications formed the later major theoretical viewpoints and theories.Studying on the history of the theory of right of action, we found that the relative perspective that has been guiding the development of the theory is gradually shifting from the "right of action--substantive rights" to the "right of action--litigious rights". The litigious rights bring theoretical breakthrough in the dilemma as a major tool. Therefore, our understanding of the relationship between the right of action and the litigious right will directly promote theoretical innovation and development. However, the relationship between them lies not with the concept or logic, which is with the idea and function. Thus, we need to consider the relationship from the perspective of rights protection, that directly lead us to rethink our existing explanation mode in "textbook", indirectly lead us to innovate new theory of right of action in face to people's lives.On the issue of the relationship between the right of action and the litigious right, domestic research is not enough, either saying nothing or just giving a heedless,mechanical understanding. And they have not described the relationship in detail. On the one hand, the relationship subjected to more neglect from the researchers, which not only because of the general discussion of the issues and the usual way of thinking, but also inadequate research in protection of the rights; the other hand, Researchers often attempt to form a thesis, fixed the relationship as a knowledge in textbook, replaced with a common-sense answer or denied the ideological of the problem. Taking the static relationship in different moments as the dynamic of relations, which take measures without regard to changes in circumstances. Therefore, in order to avoid such an error,we must thoroughly study this issue and move away from preference for common sense and dogma, abandoned in the knowledge level understanding of the problem and conducted an open study.In the process of thinking about relationship between the right of action and the litigious right from the perspective of rights protection, we should shift the study from concept to function, from text to motion, from observation to participation and ultimately from theory to reality. The right of action is essential for the protection of the substantive rights of national. And the relationship is not static stability, but dynamic equilibrium, in which, we should highlight is the personnel's principal status. Our understanding of the right of action cannot be too abstract or specific, and we need to understand its specific meaning through the relationship between the right of action and the litigious right. The dynamic process is also a process of the rights protection, which reflects the deep-rooted problems in the concept,the theory and the institution."Theory is gray, and the tree of life is green forever." In the colorful background of the real-life, the theory of the right of action has been shown to be lackluster and monotonous. We don't concern ourselves with the real-life reality that leads the dilemma of the theory. The process of shifting the study from theory to reality is the theoretical innovation process. We can say like this: from the perspective of rights protection, the development of the relative perspective of "right of action--litigious rights" is an inevitable trend, then we should study on the specific relationship from the perspective of rights protection at the same time.