On The Subject Of Litigation

Res Litigiosae and Res Judicata are the basic theories of civil litigation and these two theories will affect each other during the proceedings of litigation. Therefore, it is the cause and necessity for the two to co-ordinate and conform with each other so that court judgments of the present legal system cannot arise any inconsistency.After years of arguments, in Civil Law Countries, especially in Germany and Japan, the Theory of Res Litigiosae has basically become steady at present. In view of the Lex Scripta in Civil Law States, a litigation starts from norms rather than from facts compared to that in the Case Law States, hence for Res Litigiosae we should not only consider the factor of facts but also the legal basis as well as the claims of the litigation. Based on the above, the Theory of Res Litigiosae develops from the Old Theory of Res Litigiosae to the Theory of Litigation, the New Theory of Substantive Law and other Theories of Comparative Res Litigiosae. The Old Theory of Res Litigiosae holds that Res Litigiosae are certain rights or claims of substantive law raised for litigation. Since one same fact may possibly produce several claims in legal norms, it may produce several Res Litigiosae at the same time from the point of substantive law and it may raise the question of double performance for one fact. Then the Theory of Litigation appeared, which holds that litigation can only be considered from the point of Procedural Law, that is, the same dispute should be solved at one time. The Theory of Bi-Res-Litigiosae is constituted by declaration of litigation and facts as well as reasons;The Theory of Uni-Res-Litigiosae is formed by declaration of litigation, which only identifies the Res Litigiosae from the angle of litigation and lacks consideration for provisions of substantive law and which requires adjustment. Later the New Theory of Res Litigiosae emerged that re-tracked from the angle of the Procedural Law back to the Substantive Law, holding that there only exists one claim for one purpose of performance as the concurrences are the basis for the claim. There is only one real claim and the difference is that they have different legal nature. However, which different claim is prevailing in law, its legal conditions and effects are quite different. So this theory still can not separate from the sole considerationfor Substantive Law. After that, there appeared the Theories of Comparative Res Litigiosae with intentions to conform the above theories but with only a little influence.Judging from the dissertations of scholars, the Theories of Res Litigiosae in China is principally to undertake the Res Litigiosae based on the Old Theories of Res Litigiosae, which causes much arbitrariness in the legal practice. On one hand, the study in the theoretical field is not further and detailed, on the other hand, the practicing field does not pay much attention on the application of this theory which leads to inconsistent effects of judgments that greatly harms the judicial authorities. That problem also involves the Theories of Res Judicata. The author holds that the Res Litigiosae can be identified through the New Theory of Substantive Law when there exists concurrence of claims and the old Theory of Substantive Law can be applied for other occasions, as the Theory of Litigation refers to the philosophy of procedures with low degree of acceptance for the present situation and is incapable of improving the authorities of judgments.Once the Res Litigiosae is established, judgment will be made on this Res Litigiosae. Hence there arises the question of set effects of a judgment, which is the influence of Res Judicata on Res Litigiosae. Res Judicata means the real determining effects of a judgment. It is to establish the binding force of a judgment between courts and parties by setting the Res Judicata which mainly includes the text of an effective judgment. There are two theories as the Theory of Substantive Law and Procedural Law for Res Judicata by nature, focusing separately on determining the effects of substantive law and procedural law. The Theory of Substantive Law pays more attention on determining the confirmation of substantive legal relation and rights through a judgment, even if the judgment is against the facts;the Theory of Procedural Law is that the effects of the Res Judicata is purely of the procedural law and has unnecessary connections with the substantive legal relations and rights.The opinion of this dissertation is that despite the Theory of Substantive Law or that of Procedural Law, from the fundamental purpose, the two are the recognitions whether courts will make the same judgment for the same Res Judicata in different court proceedings. The two theories should be a unified entity that clarifies Res Judicata from different angles. The scope of Res Judicata includes the Time Scope, Subjective Scope and The Objective Scope, among which the Time Scope limits until the court debating ends;The main content ofthe Objective Scope is the text of the judgment, which is the judgment the court has made to the core of the Res Judicata, the legal relations and claiming rights the parties request the court to give. They are the effects the parties pursue;The Subjective Scope means the people who are bound by the established effects of the judgment, including those who have legal contacts with the parties besides the parties themselves.During the proceedings, a litigation includes Res Judicata and the parties. From the time when parties institute a litigation, they will be influenced by the judgment which has produced Res Judicata, that is, the institutor for the Res Litigiosae is not allowed to re-institute the litigation on the subject already established by effective judgments. During the proceedings, the objective factors of the litigation will consolidate and alter. The Objective Consolidation of litigations is instituted by different parties for different Res Litigiosae in the same proceedings. The Objective Consolidation of litigations must meet the statutory requirements and the categories of consolidation can be Simplified Consolidation, Concurrent Consolidation, Preliminary Consolidation and Selective Consolidation. For Simplified Consolidation, if the different Res Litigiosae have no connections, they will not influence each other;if they are connected, the former will be the precondition of the latter. For the Concurrent Consolidation, it is the consolidation of one performance and there is only one same legal effect. Courts will examine the different legal points and establish one judgment. The Preliminary Consolidation is also named as Subjunctive Consolidation. The parties will make a choice from the difference between the legal effects and the legal facts on the possibilities of court judgment. The Res Litigiosae is in a dynamic change but this change is within the limit of choice according to legal norms. So the former choice does not raise any Res Judicata and only the latter one can. The Selective Consolidation is actually a sole litigious claim which court will require the parties to clarify their own claims and make a selection. The altering of a litigation is mainly to alter the objective litigation. If the claim is substituted, the Res Litigiosae will alter, but the Res Litigiosae will not be changed if the number of the claim is reduced and increased. It may add procedures and influence the efficiency of litigations to allow the altering of litigations, but it has certain advantages to finally resolve the matter litigated. For the altering litigations, the Res Litigiosae that the final judgment establishes will produce Res Judicata and the previous Res Litigiosae will not.In general, the opinion of this dissertation for the present situation in China is to continuously stick to the Old Theory of Res Litigiosae, which is beneficial for the court trials and for the parties to have multiple choices when choosing legal reference. For the functions of Res Judicata, the opinion is to parallel the importance of the Theory of Litigation and the Theory of Substantive Law so that the parties are incapable of acquiring double performance even there are multiplied litigations based on one fact. Simultaneously, when the claim rights are concurrent, the New Theory of Substantive Law should be used to identify the Res Litigiosae. The mutual effects Res Litigiosae and Res Judicata should be concentrated when instituting, consolidating and altering the litigations. During the proceedings, when consolidating the institutions and trials for different facts, different facts will produce different Res Litigiosae, and the same fact should be affected by Res Judicata.