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Research On Requirements Of Litigation

Posted on:2008-05-27Degree:MasterType:Thesis
Country:ChinaCandidate:K FengFull Text:PDF
GTID:2166360218460748Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
The requirement of litigation is an important concept in the civil procedure theory of civil law system. As a requirement of a legitimate litigation, it is a fundamental concept in the structure of litigations. It outlines a clear structure of dual hearings of a case: the procedural hearing and the substantive hearing, and thus make the process of a litigation to develop along two clear routes: procedural and substantive. It also serves as a signpost for the litigants when they arguing in an action. However, the research of requirements of litigation in China's civil procedure theory is somewhat"depressed", which is most obviously demonstrated by the strictness and confuse of the requirements to commence an action in legislation, even harder to be traced in judicial practice. This article first explores the theory of requirements of litigation, and then analyzes the reasons and harms of the lack of it in China's civil procedure theory, as well as points out the necessity and method to construct the system of requirements of litigation in China. By the research of the requirements of litigation, this article aims to highlight the value of independence of procedure and to realize a reasonable construction of litigation.The main body of this article is divided into five chapters:The first chapter is an illustration of the fundamental theoretical questions of requirements of litigation. First it elaborates the meaning and theoretical status of requirements of litigation, pointing out the status and function of the concept of requirements of litigation in constructing the dual structure of a litigation. Then, it further analyzes the dispute about the nature of requirements of litigation, and thus justifies that they should be deemed as the legitimate requirements of an action. Following this, the author makes a comparative analysis of requirements of litigation in the three procedure laws and the two legal families, making it clear that this article focuses on the question of requirements of litigation in the area of civil procedure in the civil law system.The second chapter further explores the relations between requirements of litigation and several other relative concepts in the procedure theory, including the relations between requirements of litigation and requirements of substantive judgments, requirements of litigation and requirements of the right to sue, as well as requirements of litigation and requirements to commence an action. The theoretical status of requirements of litigation is more clarified by distinguishing these concepts. Besides, the three necessary fundamental concepts of an intact litigation structure are displayed by the three set of requirements: the requirements to commence an action, the requirements of litigation and the requirements of the protection of rights (recognized by being distinguished with the requirements of the right to sue)The third chapter analyzes the requirements of litigation have what concrete components. The requirement of litigation in civil procedure theory in civil law system is not only a legitimate component in the regular procedure of first instance, it is but also a legitimate component that runs through every instances and reflected in various forms of actions. Thus, this article elaborates the components of requirements of litigation from the perspective of classifying regular requirements of litigation and requirements of litigation in special actions.The fourth chapter is about questions related to the hearing and judging of requirements of litigation. On one hand, although the argument doctrine and discretion doctrine are adopted in the adversary doctrine system, the hearing of requirements of litigation is by official authority, reflecting the basic distinction between matters of requirements of litigation and substantive matters. On the other hand, certain subsequences would follow the hearing of requirements of litigation, reflected by judgments in actions. As a result, an analysis of the ways of hearing the requirements of litigation is indispensable. The last chapter is an exploration combining the practice in China and the theoretical questions relative to requirements of litigation, based on the latter. After pointing out the important meaning to civil procedure theory, legislation and the practice of researching requirements of litigation, this article analyzes the phenomenon of lacking requirements of litigation in China's current civil procedure law and its reason and harm, as well as provides a concrete proposal of constructing a system of requirements of litigation in China's civil actions.
Keywords/Search Tags:requirements of litigation, requirements of the right to sue, requirements of the protection of rights, requirements to commence an action
PDF Full Text Request
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