The Relief To Parties' Procedural Action With Intention Defect

The theory of procedural action emerged in Germany. With the development of the theory, the academic circles disputed the question whether law should give the parties the right to relieve the defective procedural action, especially with intention defect. The traditional theory of civil law system thought that the procedure was made up with a series of continuous procedural action. If the law allowed the parties to dispute the procedural action that had done, it may influence the definition of the procedural action and the stability of the procedure. Therefore, to judge the effect of the procedural action, the law only considered the objective expression when the action was founded, not considering the intentional expression. However, the common law system advocated that the intentional expression, as one part of the procedural action's components, related to two kinds of different procedural idea, emphasizing the justice of substance or procedural stability. The civil procedure was set up to solve the parties'dispute about rights and duties. So both of the justice of substance and procedural stability should be considered. Modern theory of civil law system gradually considers give the parties the right to relieve. In China, the research on the theory of the action of civil is little. However, in practice, it emerges the action of mediation which is lacking of real intention, the fraudulent action in procedure, the action of unreal self-acknowledgement and so on. These actions with intention defect damage the judicial authority and parties'procedural benefit. So the author put these problems in the theory of procedural action to research and find the way to solve these problems from the topic of the relief to parties'procedural action with intention defect. The thesis is divided into five chapters:The first chapter is about the theory abstract of the relief to the parties'procedural action with intention defect.The chapter summarizes the development of the theory and current situation of the research. To the parts of the procedural action, the author advocates the theory of four parts. According to the parts of the procedural action, the thesis defines the conception of the defect of civil procedure and categories, the procedure defect and the intention defect. This thesis mainly discusses the intention defect.The second chapter is about the forms of expression of procedural action with intention defect.The chapter lists six different intention defects. They are unilateral false representation, conspiring false representation, mistake, false deliver, fraud and duress.The third chapter is about the theoretic dispute and the author's responses on the procedural action with intention defect.The chapter introduces the theoretic dispute about the procedural action with intention defect. The author gives four theoretic responses to the dispute.The fourth chapter is about the contrast and enlightenment between the two law systems on the relief system of procedural action with intention defect.The chapter mainly summarize the relief system of procedural action with intention defect in common law system and civil law system. After the contrast between the two law systems, the author concludes that the civil law system has gradually changed direction to consider the intention defect.The fifth chapter is about setting up the system of the relief to the parties'procedural action with intention defect in China.The chapter is the thesis's emphasis. It analyzes the value of the relief to the parties'procedural action with intention defect in China, the generally condition of the parties'applying for relief and main ways of relief. In the last part, in order to cooperate with the system of relief, the author thinks that our country's civil procedure law should carry out four kinds of reformation correspondingly.