Explore. Civil Verdict And The Res Judicata Problem

The operant civil verdict is the judgment of justice based on the national authority, which cannot be repealed or changed arbitrarily, if not through the special procedure. And the question of res judicate is admitted and accepted by world majority nations, the nations of Continental Law Legal System and England and the United States in particular. Because of our country's insufficiency in legislation and backward in theoretical research, different understanding and action exist in judicatory practices, which inevitably has a great impact on judicatory fair, the unification of law and authority of law. Therefore, deepening research of res judicate into the theory of operant civil verdict not only has the profound meaning, but also has judicial significance. For this, focusing on actuality, the author probes into the problem about the theories and the practice of res judicate. In the first part, the article tells us the conception of res judicate, combined with the occurrence, development and construction of theory of res judicate from the historical angle of view. After having introducing five kinds of theories about character of res judicate to us, the author gives his analysises and evaluations on them. Despite the differences that exist in the five kinds of theories about characters of res judicate, the author thinks that they come to the same purpose at last. That is to say, on the one hand, the court cannot have a contrary effect and new judgment on the operant civil verdict in law; On the other hand, the parties involved in the operant civil verdict cannot sue for the same litigation object again and not for the same reason either. At the same time, the author thinks the establishment of the theory on res judicate can really reach the ultimate target ofcivil lawsuit-judicial authority, procedural justice, the economy and efficiency and procedure stability with suppression of repeating the litigation. Afterward, the boundary of res judicate , the domain of functional extent of res judicate , is the core of the system of res judicate. The author holds that the boundary of res judicate consists of three parts: the boundary of subject, which refers to the subjective scope of the function of res judicate; the boundary of object, which refers to the items bound by the effects of res judicate; the boundary of time, which refers to the point of time that the state of the rights and obligations is fixed by judgment, including the standard time, production and termination of res judicate. The author demonstrated them respectively. For the second part, after having discussed the legislative provision of Continental Law Legal System in Germany, Japan, France etc., as well as England and the United States, the author probes into the occurrence, development and construction of res judicate theory in our country. On the whole, our country is lack of the legislative provision of res judicate because the current provision does not have the conception of " res judicate ", for the legislative preparation of res judicate is insufficient. But to be sure, the content of legislative provision in our country should recognize and accept the theory of res judicate, whether theoretically or practically, and apply it to practice. The third part, concerning judicatory practice, the author discusses the application of res judicate in practice in our country. The fourth part, by resolving judicatory practice, a lot of problems which have the tremendous bane were pointed out by the author. Then, the author comments on many reasons, such as the legislative factor, judges' character factor and the factor of judicial perceptionlimitation. The fifth part emphasizes that the operant civil verdict of res judicate is inevitably a fundamental theory in accordance with modern legal system, so we should take into research to combining application of practice. Although the research of the operant civil verdict of res judicate in our country is at its preliminary stage, with the abandonment of single valuable target to entity reality and...