On The Formation Force Of Civil Judgement

Formation force means the effect of formation judgment that makes the rights and obligations between the parties take place, change or eliminate. Because of the characteristics of the action of formation, scholars rarely pay close attention to the formation force, so that lots of questions are left to be studied. For example, what's the nature of the formation force? What's the relationship between the formation force and the right of formation? What's the difference of res judicata and the formation force? Some formation judgments need a certain behavior to achieve complete forming effect. Does it show that in addition to formation force,the formation judgment also has executive force? This paper research on the nature and scopeof the formation force, as a basis for analyzing differences of formation force, res judicata andexecutive force, which could reflect the unique value of formation force. This paperComposed of three parts except introduction and conclusion.The first part of the paper discusses the effect of judgment. First, from the parties,society and the national perspective, state the value of judgment. Second, introduce thehistory of the effect of judgments, from the Roman and Germanic law to the civil law andcommon law. Finally there is a summery of several effect of civil judgments, includingbinding force, determination force, res judicata, executive force and formation force.The second part of the paper discusses some problems of the action of formation. Thetheory of Civil Law divides civil action into action of performance, action of confirmationand action of formation. The appearance of action of formation was the latest. And it isclosely related to discovery of the right of formation. Some scholars do not agree withdividing civil action into three types. The paper refutes questioned perspective, and advocatesthe action of formation is an independent type of action. Then it describes the classification ofthe action of forrr}ation. It is pointed out that "the action of formation on Procedural Law"should not be included in the action of formation. It compares the theories concerning theobject of action, and claims that we should use the Plaintiffs statement as the object of action.The third part of the paper discusses formation force itself. The effect of the formationforce is based on acts of state. Whether to allow the formation force retroactive, depends onthe balance between protecting stability of the legal relationship and the need to achieve theformation effect. In principle, the formation force is valid for all. However, there are also exceptions. Res judicata of formation judgment can not replace formation force. And there isno executive force in formation judgment.Overall, the first two parts of the paper are the basis of the third part. Only we have acomprehensive understanding of legal effect of judgment and action of formation, can wekeenly aware the importance of formation force. By studying formation force, contributes tothe improvement of legal effect of judgment and action of formation.