Play In Any Litigation Theoretical Research

The arbitrary undertaking system in civil action means that thethird party who doesn't own substantial rights represents other people'sbenefit as an eligible litigant with his own name by authorization of thesubject of the substantial right and claims other people's right, then thedecision of the court shall be valid for the subjects of the substantialright or parties of Originally legal relation. So the third party is calledlitigation undertaker, and the parties of Original legal relation are calledundertaken-person. The arbitrary undertaking system in civil action isdivided into "the arbitrary undertaking system in civil action stipulatedby law" and "the arbitrary undertaking system in civil action appliedextensively". "the arbitrary undertaking system in civil action stipulatedby law" means that the third party can lawsuit by authorization of theowner of the substantive right according to law. Its typical forms are therepresentative lawsuits in our country and the commissarial litigation inJapan and representative lawsuits. "the arbitrary undertaking system incivil action applied extensively" means that the third party lawsuits byauthorization if having the worthy and proper benefits.The significance of the theory is that the third party not havingactio can lawsuit as an eligible litigant but the decision of the court shallbe valid for the parties of Originally legal relation. And the theory ofexpansion of litigant eligibility provides the basic theory for separatingeligible litigant from subjects of law. Unfortunately, our country scholardidn't attach importance to it for the function of the traditional litigantconcept. Our country's litigant concept is defined on both the procedurallaw and the substantive law according to the article 183 in CivilProcedure Law of the People's Republic of China. The legislation andthe theory of litigant eligibility in China are narrowly defined. This isnot in favor of protecting the rights of litigants. With the increase inlitigations for the public interests, the scope of litigants should beenlarged.Not only is it significant to perfect the litigant system, but itextends the function of settling disputes judicially and realizes the litigation benefits. Especially to the modern lawsuit, the arbitraryundertaking system in civil action is indispensable. In recent years, thecivil procedural law circles in continental law system has taken anintense discussion about the arbitrary undertaking system in civil action,and produced extensive influence to the native judicial progress. Thestudy of the theory has an important significance for the theories andpractice, its meaning concretely expresses as follow:Ⅰ. Perfecting the litigant systemⅡ. Extending the function of settling disputes judiciallyⅢ. Looking after both the litigation equity and efficiencyAbove all, not only has it an important value to civil action, but tolegislation and judicial practice, this paper is supposed to conduct adetailed research into the arbitrary undertaking system in civil action inthe world theoretically and systematically, and put forward someadvice about how to perfect it.The thesis consists of 4 chapters. The main contents and opinionsof each chapter are discussed as follow :Chapter 1 presents the conception and types of the arbitraryundertaking system in civil action, and takes the define of the conceptby distinguishing the relevant concepts in civil action. About theclassification of the arbitrarily undertaking system in civil action, thispaper introduces both our country and Japanese scholar's theory, andpoints out the our country should adopt what classification of it, namely"the arbitrary undertaking system in civil action stipulated by law" and"the arbitrary undertaking system in civil action applied extensively".Chapter 2 provides our civil trial legislation and law applicationwith theoretical basis by the research of attitude to it abroad. It isbelieved that the study should be based on the research fruits of thecountries of continental law such as Germany and Japan, and our studyis mainly about the application of those country's arbitrary undertakingsystem in civil action, especially it applied extensively.Chapter 3 mainly makes a research into the basic theory of thearbitrary undertaking system in civil action through the value, thelitigation elements and law application etc. This chapter expounds the characteristic of this system based on the principle of the procedural parties and the principle of the litigation benefits. Then it overcomes the obstacle which is the theory of the arbitrary undertaking system in civil action based on the theory of the expansion of eligible litigant. At last, the author tried his best to discuss the problem in application.Chapter 4 firstly describes the present situation of the arbitrary undertaking system in China, then puts forward some opinions to set up the arbitrary undertaking system in China. In this chapter, the author wanted to hunt after the direction which our country's arbitrary undertaking system takes by the analysis of its application; and hoped to set up the arbitrary undertaking system in action in china from "advancing the representative lawsuits" to "allowing the limitable arbitrary undertaking system in civil action applied extensively".