The Theory Of Loss Of Civil Procedure Rights

Loss of civil procedure rights means in the civil process, parties (including the third party) do not exercise the rights of action at the statutory or specified period without legitimate reasons, or the legal action of exercising rights of action violates the principle of good faith, which lead to loss of the original rights of action. Loss of rights consists of the subject element, the subjective element, the object element and the objective element. Loss of rights regards parties' obligations of litigation promotion and process stability as the legal basis, and regards achieving procedural justice and improving litigation efficiency as the target of value. The major states and regions of common law and civil law are provided for loss of rights system in order to solve the problem of litigation delay. Because there is no complete loss of rights system provided in our country, which results in many drawbacks in the civil judicial practice, such as litigation raid, procedure repeated, judgments lack of res judicata. Based on the analysis of the existing legislation on loss of rights of our country, the author makes a few suggestions on how to improve loss of rights system, but the application of loss of rights should have strict limits in practice, in order to prevent causing harm to substantive justice for loss of rights is over-focusing on the target of litigation promotion.The paper has more than 30,000 words and consists of four parts in addition to the introduction and the conclusion, the main contents are as follows:Part I is to overview loss of civil procedure rights system. First of all, the author defines the concept of loss of rights, and points out the reasons that lead to loss of righst are parties do not exercise the rights of action at the statutory or specified period without legitimate reasons, or the legal action of exercising rights of action violates the principle of good faith. Secondly, the author analyses the elements of loss of rights, including the subject element, the subjective element, the object element and the objective element. The subject element is parties in a broad sense, including the plaintiff, the defendant and the third party. The subjective element is intention or gross negligence.The object element is rights of civil action, including parties to put forward methods of attack and defense and raise objections to procedural matters. The objective element includes three aspects: first, the parties put forward methods of attack and defense with delay; second, permitting the parties to put forward methods of attack and defense with delay will result in serious consequences of litigation delay; third, the parties puting forward methods of attack and defense with delay is the only reason which leds to litigation delay. Finally the author delineates the main types of loss of rights roughly based on our country's existing civil rights legislation.Part II, the legal basis and the target of value of loss of civil procedure rights. First of all, the author points out the legal basises of loss of rights are parties' obligations of litigation promotion and process stability. Parties' obligations of litigation promotion can be generated in the development history of the civil litigation, depend on the development of purpose of civil procedure and the establishment of the principle of good faith as the fundamental principle in civil procedure. In the various elements of process stability, the inextricably elements related with loss of rights system are ordering, irreversibility, time-bound and finality of procedure. Secondly, the author points out the targets of value of loss of rights system are to achieve procedural justice and improve litigation efficiency. Litigation justice includes procedural justice and substantive justice, loss of rights system is a reflection of principle of the parties' equality and principle of maintaining procedures of procedural justice. Litigation efficiency consists of economic costs and economic benefits which are two basic elements, because litigation creates negative economic benefits, and loss of rights system benefits the courts and the parties to reduce economic costs, so improves litigation efficiency.Part III is to compare loss of civil procedure rights system in extraterritorial states and regions. At this part, the author first introduces the law on loss of rights system of the major states and regions of common law and civil law, and points out that although each country and region has set up a different loss of rights system, but in general has set up a common loss of rights system for the litigation rights which are directly related to the interests of the other party, as well as the litigation rights which have an important impact on the entire procedure. On this basis, the author has a comparative analysis of loss of rights system of two legal systems, and points out that because the litigation structure and litigation culture are different, common law generally applies a more severe loss of rights system, civil law generally applies a more relaxed loss of rights system.Part IV is to improve loss of rights system of our country. At this part, the author has an analysis on the provisions of relevant legislation, such as loss of rights to reply, loss of rights to provide evidence, loss of rights to apply for a retrial and loss of rights to apply for an implementation, which have more problems in judicial practice, points out the problems of the above-mentioned systems in judicial practice, and makes a few suggestions on how to improve these systems. Loss of rights probably focus on the target of litigation promotion too much and cause harm to substantive justice, so the author suggests that we should emphasize the court to perform obligations of litigation promotion, elements of loss of rights should be limited to reduction of interpretation, also we can consider to ease the sanctions of loss of rights in special circumstances.The paper mainly use the research methods of comparative analysis and normative analysis, tries to make a few suggestions on how to improve our country's loss of rights system. The author suggests that our country should set up a complete loss of rights system, but because loss of rights system have a risk of causing harm to substantive justice, so the application of loss of rights should have strict limits in judicial practice.