Claim Conflict Studies

Right of claim is the vital point of the civil right system, it is also a bridge to link substantive law with procedural law, a tie to link public law with private law. Conflict of claim does not only exists civil right field generally, but also relates directly to performance and realization of parties' rights. Therefore, to systematize right of claim is both of great significance in theory and in practice.In addition to introduction and conclusion, this thesis includes four main parts as follows.The first part of this article defines conflict of claim. The writer thinks that concept of claim originated from the "actio" of Roman law. Right of claim is d i fferent form claim in extention time to perform and scope. Besides this it is different from litigious right too. It is not connected closely with right of action in procedure, but is the basis of right of action in substance.Right of claim is remedial technical derivative, and its realization relies on others. So according to this thesis, conflict of claim means a law phenomenon when several related rights of claim can be enforced at the same time, but they can not all be realized. It has three basic characteristics: 1. It needs more than two claims established at the same time; 2. The right of claims are connected; 3. The right of claims are not possible to be realized or should not be realized completely. Therefore, right of claim is not same with conflict of rights.The second part of this article analyzes reasons which bring up conflict of right of claim. According to thi s thesis, there are three causes of right of claim: opposite, systematic, ranking and openness which are the character of the civil rights arerelated closely to bringing up conflict claim; not exclusive and derivative-whichare the unique character of right of claim supports conflict; at last, standing on the point of legal norm, thorough legal protection and shortcoming of legal technic accede the beginning of conflict of claim.The third part of this article analyzes the kinds of conflicts of right of claim. From the base of right, conflict of right of claim can be divided into homogeneous conflict and heterogeneous conflict. From whether contradictive on logic, conflict of right of claim can be divided into norm conflict and fact conflict. From the right state, conflict of right of claim can be divided into static conflict and moving state confli ct. From the subject of :ri ght of claim, confl ict of right of claim can be divided i nto confl ic t; of his own right, and confl i ct of others' right. From the cause, confl i ct of right of claim can be divided into natural conflict and arti ficial confl ict. Fromthe harmonization of nature, conflict of right of claim can be divided into absolute conflict and comparative conflict.The last part of this article clarifies the view to regulate conflict of right of claim. According to this thesis, the writer suggests that interest measurement principle and equality principle should be taken as general applicable principle; conflict of right of claim should be divided into concurrence of right of claims assembling of right of claim and competitive right of claim according to number of subject and relationship between claims. They have their own characters, own remedy methods, so we had better regulate these three kinds of conflict of right of claim one by one. Concurrence of right of claim means phenomenon that when one action which violate clvi 1 duty is suitable to more than two right of claim which clash on contents but competitive . People are likely to pay more attention to concurrence of compensation for tort damage and compensation for breach damage. Competitive right of claim means a phenomenon that on one same object several subjects have right of claim with same form to one debtor. Assembling of right of claim means that a phenomenon from the point of obligee. It includes three kinds of circumstances primarily. First, obligee who has remedial right of claim can ask debtor to cease the infringing act, clear up ill effects, r...