Research On Civil Right Of Action

The theory of the right of action (RA for short) has a longhistory in the lawsuitof action (LA for short). The conception of RA has always been in the highestposition in LA—especially in the Civil Lawsuit Of Action(CLA for short)—since itarose. RA is not only quite an important basical theory in LA, in the meanwhile, italso takes a decisive position in legal procedure embodying its multiple values. Atpresent stipulations on RA in our country hasn't been perfect and it lacksspecification duringthe justice practice in protections and control for RA. In viewof some research achievements on the theory of RA got by developed countries, andthe basic of RA demonstration program, this essay tries to analyse relativeproblems on civil RA in our country according to our practical situation from 2aspects, that is, RA theory in inertia and RA performing in activity.This essay can be divided into four sections. First section includes thesummary of civil RA. It mainly makes a sketch on the research of RA both at homeand abroad on the basic of some materials the got by the author, and this will help tobring out the important and novel points of this essay.The second section is about the description to civil RA principle. Firstly, itmentioned the gross opinions on civil RA. The author has investigated the history ofthe theory of RA, especially describes about several mature theories of RA in mainland—law countries. It will offer a comparative basic for the analysis andimprovement on RA of China below.By comparing several RA theories,the authorhas redefinited RA thinking it a processing right; secondly, it analyses RA'sconstruction from different angles,such as RA's right subject, RA's responsiblesubject and RA's objection; then the author has made a macro-analysis of a series ofbasical functions of RA; later he fixes the extension of RA and puts the right ofsue,the right of anti-sue, the right of appeal, the right of applying for reasue and theright of criminal incidental civil action into the category of RA; at last,he hascompared RA and some relative conceptions as to it could be more clear and easier tobe followed.The third section is about analysis on the present situation in our country.Though 3 aspects of legislation, theory and lawsuit, the author has given an analysison the present situation in our country from 2 angels of protection and misuse of RA;he has a different views against a traditional opinion, that is, people always think thatthe sue condition and the charge of the legal proceeding isn't good for the party, theauthor thinks it's not necessary to repeat the RA's descriptions in constitution; in themeanwhile, he made some discussion about the theory of RA-misuse and its presentsituation in China.According to the previous part,the forth section has offered some advices onRA's protection and misuse. Firstly,the author has analysed the necessarity andfeasibility of the need of RA in our country; sencondly, he raises some principles onhow to improve RA in China from the angle of RA performing, and this will not onlymake positive sense to the party,but also have a guiding function for governmentinstitution to protect or control the party; later in considering RA's protection andmisuse, the author poses that it could strengthen the protection for the party throughresetting the functions which allows the courts to place a case on file. Besides,thissection also makes an instruction about preventing the misuse of RA.To sum up,the author think that we should research on RA from value idea andpolicy construction.We may put RA theory into practice one day if by reviewing our RA policy and making the function yield well.