Study Of Pending Action In Civil Procedure Theory

Pending action is the legal concept of Civil Procedure in the civil law countries, whether in academia or practitioners have been widely used. It makes more rigorous system of civil litigation theory, and better protect the rights of the parties in practice, save judicial resources, maintain the uniformity of law. But because of historical reasons and the different legislative guiding ideology in our country, resulting in a long time rarely mentioned the concept. Germany and Japan and China's Taiwan region belong to the same civil law. The Civil Procedure of them is also the same strain. This article introduces their legislation to the relevant provisions of pending action, and analyses the application of some important codes by relevant cases. It discusses the close relationship between pending action , the right to appeal, subject matter of litigation and other important theories. Pending action is important with full of the proceedings in the civil legal system . Then it can initiate the concerns and thinkings related to China's Civil Procedure system. Full-text is divided into five parts:Part I: Introduction. This paragraph studies present situation of pending action in Germany and Japan-based civil law countries and regions and China. It points out theoretical and practical significance of pending action as the legal concept of Civil Procedure, and explains the writing ideas of this aticle.Part II: Analysis of the current legislation of pending action. First, it separately explains the concept of pending action from the Chinese point to view of legal language , lists the relevant legislation at home and abroad, and demonstrats the maturity and perfection of pending action in civil law countries and regions.Part III: Issue and pending action. This section investigates pending action around the issue in two aspects. The first section starts from the point of issue that is the exercise of the right to appeal. It studies the historical origins of the theory of the right to appeal consumption and shows that the parties are able to prosecute because of the enjoyment of the right to appeal. Prosecution means the beginning of the exercise of the right to appeal. When action concluded it is also the end of the right to appeal. Therefore, we can say, pending action is incurred due to the exercise of the right to appeal, and finished because of completely consumption of the right to appeal. In short, the right to appeal is consumed for pending action. The second Paragraph starts with the nature element of issue——the subject matter of action and points out that one of the important effect of pending action is making the subject matter of action constant. However, with the development of the times ,it appears an exception, that is, appeals changed. This section fully shows that pending action has significant impact on the subject matter of litigation from the prosecution until the end of the proceedings through establishing cases. And different theories of the subject matter of litigation also affects the application of pending action.Part IV: Res judicata and pengding action. First,defining the concept of res judicata and its dual role of shape, pointing out that the negative effects of res judicata and the effect of the pending action banning repetition of action, named as the "non bis in idem" by scholars. It looks at the sources of " both sentenced to matters of defense" ,analyses the relationship between pending action and res judicata through establishing cases :the role that they take place at different times, when pending action coming to an end is the final decision determined while res judicata statrts at the time of final decisions determined; the role targets is different, the former effets the course of the trial in different courts in space, while the latter plays a role in subsequent proceedings in time. Both take place subsequently and cooperate with each other .And both prevent the parties repeating action on the same cases in time and space. It can effectively realize the rational allocation of judicial resources and litigation economy.Part V: Ponder issues related pending action in China. This section extracts the limited codes of civil law of the mainland of China. And it points out that mainland China is lack of effect of the ban of repeated prosecutions and legal norms are imperfect.It hopes that give rise to more attention and thinking on this issue in legal academia and practitioners.