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On A Request Litigation

Posted on:2005-06-17Degree:MasterType:Thesis
Country:ChinaCandidate:X P ZhuFull Text:PDF
Abstract/Summary:PDF Full Text Request
"part lawsuit " means the plaintiff only advocates part of legal rights while the civil prosecuting , whether other rights could be prosecuted. In reality judicial practice, a large amount of " part lawsuit " exist in. There aren' t not only systematic theory research but also clear legislate regulation in the mainland. So it is very confused in judicial practice.This paper has been divided into four parts to describe this question.First part focuses on the difference and touch between * part lawsuit "and relevant problems. Firstly the author define the range of " a request lawsuit ". On the theory of "standard time " in the sentenced strength theory , "compensation for damage after academia " "and " bring up by fee, cost of maintenance after " are been out of , which are thought belong to " parts lawsuit " by mistake. Having defined the difference of "part lawsuit " , " approved of the part that the plaintiff ask ", the right has not been exhausted poorly ", " contradict surplus that compensate and " lawsuit some rights that give up in conciliating ", the author limites the epitaxy of " part lawsuit ". Secondly, the author thought , " part lawsuit " had close contacts with basic theories of civil action. The different theory will maintain a different attitude to "pert lawsuit " . So, we must know " part lawsuit " question in term of structuring basic theoretical system of our country' s civil action .Second part is about the reason of "part lawsuit "producing, including legal knowledge deficient , experience inadequate, economic ability insufficient and the civil prosecuting request.Third part is about the different views between home and abroad, legislating and and the author' s view. Foreign and Taiwan hold three difference views, the affirming theory, the denying theory and the discrimination theory. In Japan and Taiwan, the affirming theory occupies still in theory circle not only in legislate but also in legal precedent. There are some relations with "old substantive law theory "deep influence of platform. The theory have already been abandoned by most scholars because one' s own defect and new law of legal procedure emergence of school that can'tovercome. So-called " the discrimination theory ", refer to treat with a certain discrimination while prosecuting whether the plaintiff show " surplus rights clearly . Showing surplus rights clearly, who will be allowed to ask again. Hidden one will be not allow him to. This theory is on the basis of justice , which put emphasis on to set up protect to endant " defence contradict the chance ". So-called " the denying theory " does not allow " part lawsuit " , which is accepted by numerous scholar not only in Great Britain American also in French. The continent scholar of our country has not specialized in " part lawsuit " question , the situation of making in practice is in the majority.I think, we should adopt " the denying theory ". Firstly because the value orientation stable to the procedure needs to deny " part lawsuit *, especially China just now to the legal system, to guarantee the stability of the civil order and marketing security; Secondly, the lawsuit' s purpose to solve the dispute demands to deny it. Because specific individual and surplus entity's right of the group, we need a kind of end and mandatory dispute to solve the mechanism even more, to make people's right state in turmoil resume as soon as possible. Third, the structure exercised to the right of telling needs to deny it . If part lawsuit allowed, the relief that can be given two or more times on the basis of the same legal relation, which not only increase lawsuit cost, but also rights cut apart into exercising several times artificially, undoubtedly acknowledging telling the abuse of right. Fourth, we should adopt the new theory of object of litigation on " part lawsuit ". " Part right " can be regarded as the plaintiff have given up partly, with the object of litigation , which has nothing to litigate again . The fifth, the strength sentenced theory needs to deny " part lawsuit "...
Keywords/Search Tags:Civil Litigation, Res Judicata, Part Lawsuit
PDF Full Text Request
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