On The Civil Contract

Although it's not a major theoretical issue in the field of civil litigation ,civil litigation contract was deeply discussed by the scholars in continental legal family such as Germany, Japan, France and Taiwan .To date, however, Chinese civil litigation scholars have paid scant attention to litigation contract. Is it necessary for our country to build some kinds of litigation contract institutions which are not in the present law when we modify the civil procedure law? Is il rational which have been in the civil procedure law? That's why the author write this dissertation and what the author want to answer.There are only several years from the conception of litigation was introduced into China. And some kinds of litigation contracts aren't permitted by the Chinese civil procedure law although admitted by the continental legal system country. So the article pay much attention to the jurisprudence basis (including contractual trend in public law, negotiation of procedure, party's subject right in procedure, advanced legal relationship in civil procedure) of litigation contract at first.As far as the nature of civil litigation contract is concerned, the research on it isn't unanimous. There are four sorts of viewpoints about it. The author point out that some scholars make the same mistake as confusing the conception when they study the nature of civil litigation contract from the beginning. If we discuss the relationship between procedure and subjective law in civil litigation on the basis of new litigious right theory, we can find that the litigation contract belong to the act of civil litigation which may cause the procedural effect and subjective effect.Then the dissertation go further into the establishment elements and effect factors of civil litigation contract. The effective litigation contract can restrain the court and parties, the article expound the binding force of litigation contract logically.The traditional theory emphasized the distinction between civil law and civil procedure law after civil procedure law derived from civil law. Most scholars deny the relief to the litigation act with 11 aw. Judging from the subjective justice and efficiency, the author hold it's necessary to relieve some kinds of litigation contract what has flaw.Next the article discusses 3 concrete litigation contracts including the jurisdiction agreement, the judge-chosen contract and settlement in civil litigation.As far as the jurisdiction agreement, the author thinks the law should broaden the applicable scope of the agreement from the contract disputes to the whole property disputes, add the court which can be chosen, define the scope the agreement can restrain.The second part of this section introduces the judge-chosen institution in Taiwan., which is the only one all over the world. The article believe it's not a practical institution because of the reason mentioned below.The last part of the section discusses around the settlement. First the article expound the procedural elements and subjective elements of settlement especially the objective matter (object of action). The author consider that the settlement must limit in the object matter. The part over the object matter in the agreement doesn't belong to the settlement, but can be regarded as a contract in subjective law. At the end the dissertation go further into the relief of settlement with flaw concretely.