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The Definition Of Idem In The Ne Bis In Idem Principe

Posted on:2008-03-27Degree:MasterType:Thesis
Country:ChinaCandidate:W HuFull Text:PDF
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The ne bis in idem principle, which means the decided case can not be put on a trial again, has experienced a long history dated back from Roman law by those Roman jurists. It reflects two basic objectives in civil litigation, that is, justice and efficiency, based on which it has played the important role in the civil litigation system all over the world. Despite the fact mentioned above, However, the ne bis in idem principle has not been defined clearly as a litigation principle or systematized in our civil litigation legal field, and for legislative problems and lacking of systematic theories in practice, its enformance has not been unified yet due to the different understanding and standard, which have not only hindered the unification of our judicial trials and legal system but also derogated the erection of judical authority.The ne bis in idem principle in civil litigation can be subdivided into two levels. One is litigation effectiveness, i.e. prohibition to the double jeopardy; the other is power of decision. The former is ne bis in idem during the litigation process while the latter happens after making a decision. As to the definition of idem in litigation, some think it refers to the same party making the same legal petition on the basis of the same legal relationship, which still can not solve several petitions raised by the same party based on the same legal relationship. When a petition is overruled by the court, can the same party bring about that petition to other court? Shall the other court accept and hear the case? There is another opinion which agrees that subjective element and objective element of a litigation should be concluded. Though there are many theories on litigation objectives, none of them can solve problems occurred in practice. The author thinks that the idem includes two elements: one is the party; the other is dispute. If the aforesaid elements are same, it is the same litigation. As to the definition of idem after decision which is mainly related with the theory of power of decision, this essay makes out its subjective definition, time definition and objective definition.
Keywords/Search Tags:The ne bis in idem principle, Power of decision, Litigation object, Preclusion
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