The Research On Objective Scope Of Res Judicata In Civil Judgement

As the reason of the history, the system of res judicata is still not founded in our country. And the objective scope of res judicata, which is supposed to be the most practical aspect of the system is also being ingnored by academy and the legislation. As the result, it caused the confusion of the judicial practice. This article tries to establish the objective scope of res judicata theory which is consistent with the situation of our country on the basis of studying on the relevant theories of civil law system.This article can be divided into three parts except for the preface and the conclusion.Chapter one: the summary of res judicata theory. This chapter mainly introduces the history, concept, constitutions and the effect of res judicata. The author considers res judicata as the substantive rechtskraft of the judgement, especially makes a statement on the negative and positive effect of res judicata, and show the situations when the res judicata takes effect by instantiation.Chapter two: the relevant theory of objective scope of res judicata. This chapter mainly intruduces and discusses the research status of objective scope of res judicata in the countries which follow the civil law system. The traditional theory follows the rule that objective scope of res judicata is the same as the scope of the subject matter, and restricts the objective scope of res judicata in the main part of the judgement, excluding the res judicata of the judgement reason, except for the setoff reason. On the problem of which standard should be follwed to indentify the subject matter, the author points out that the purpose of the civil litigation especially the proceeding security degree for the parties should be made in consideration. Although the effectiveness of issue theory has provided a good way to solve the limits of the traditional objective scope of res judicata, but it should be cautious to adopt it.The partial claim problem which is related to objective scope of res judicata is mainly decided by valuation.Chapter three: the establishment of objective scope of res judicata system in China. This chapter mainly analyzes current status and reason for the disadvantages of objective scope of res judicata system, and discusses the feasibility to establish the system in China at present.Considering the practice status, the author considers objective scope of res judicata in China now should be restricted in the main part of judgement and exclude the res judicata of the judgement reason,except for the setoff reason,and we should adopt Die urspr negliche materieslrechtliche theorie as the standard to indentify the subject matter. On the problem of partial claim,we should adopt negative attitude in principle.