On Civil Right Of Action And Its System Protection

The theory of right of action, which is called the Goldbach's conjecture in civil procedural theory system, is one of the basic important theoretic question. The right of action is regulated by legal system, and it endows the parties basic rights to sue for the protection by trial. As the footstone of civil procedural law system, the right of action guides the whole system to start, set up and perform in order in the process of the whole trial, including the first trial, the second trial and the retrial.The concept of right of action originated from the system of action in Rome Law Age, within which the right of action contained substantial and procedural rights. While the system of action in Rome Law System gradually divided in the late German common law period, with which the right of action divided into three rights: basic right in substantial right, request right in substantial right and pure procedural right, which became the basic of the right of action in modern law. This article introduces major theory of right of action according to their development progress, including right of action in private law, abstract right of action, substantial right of action, request right of present case, request right of judicial action, constitutional right of action, plural right of action, etc. Then, it analyzes the main point of each theory and their advantages and disadvantages to build the theoretic start point and basic of the research on civil right of action.Our civil right of action theory was formed on the base of two rights of action of the Soviet Union which is still popular in our country. While in the middle and later period in the 1990s, it was facing challenges of the one right theory which had branches. The theoretic divarication and confusion result in the practical problems, such as weak protection of the right of action in our civil procedural system. Therefore, this article lay eyes on three major aspects: the register syetem, the jurisdiction system and the extension of subject of civil procedure, in order to discuss redesigning of civil procedure system to enhance its protection. This redesigning concludes three major aspects. The first is about the theoretic and pratical possibility and necessity of register system. The second is about the perfection of protect of right of action in our jurisdiction system. The third is about the theoretic and practical basic of the extension of subject of civil procedure and the relative system.Except for the introduction, there are three parts: part on discusses the birth and development of civil right of action; part two discusses in theory; part three discusses the problems and brings the advices.Part one: the birth and development of civil right of action. This part first retrospects the concept of right of action in Roman law and its dissembly. And then, it discusses the major discussions on the theory. At last, it discusses discussions on the theory of our country.Part two: theoretic discussion on the right of action. This part can be divided into two sections. The first section discusses the source, character, concept and meaning of right of action, with the thought that the right of action origins from the national and legal system and is a procedural right, in order to point out that right of action is a basic human right and constitutional right of the whole country. The second section emphasize the material rights after the discerption of legal rights and material rights, and discuss the two keys: propriety of party and interest of sue.Part three:problems and advices of the right of action. By combining Chinese civil procedural practice, this part discusses the problems and advises that the register examine system should be changed into register checking system, that the domination system should be changed to better protect the right of action, that the subject should be enlarged, and that the procedural shoulder system should be corrected.