The Point Of Contention Efficient Theoretical Research

According to the traditional theory of res judicata, object of litigationhas res judicata, at the same time the grounds of decision has no res judicata.This mode of system leads to a fatal bug with res judicata: as a system torealize the stabiliTation of judgment and one-shot settlement of dispute, resjudicata requires the party' s claim couldn't ask once more after it has beenjudged by the determinate sentence. However, as the judgement in thegrounds of decision has no sanction, the parties could argue with the issue inthe grounds of decision once more, this leads to conflictive judgment andneedless waste ofjudicial resources. Therefore, the sanction of the judgementin the grounds of decision has become a problem which need settledimmediately in theory and practice.This thesis starts with the trouble of object extent ofres judicata, payingattention to both parties' procedural safeguard and one-shot settlement ofdispute, according to the logic of analyzing problem and settling problem, itstudies the theory of effectiveness of issue comprehensively. And it discussesthe value of the theory to civil action in our country.There are six parts in this thesis, whose total number of words is about50,000.In the first part it analyses object extent of res judicata and the problemit brings in different theories of object of litigation. Based on the thought ofbroadening bound of res judicata, there are usually have two means whichare expansion of object of litigation and expansion of res judicata. But thetwo means couldn't resolve problems availably because of their inherent vice, on the other hand, they bring more harm when resolving problems. So thetwo means are both improper, we must look for other reasonable means toresolve the problem of sanction of the judgement in the grounds of decision.In the second part it contrasts the rule of former adjudication in USA.With the effectual cooperation of issue preclusion, the rule of formeradjudication in USA achieves the balance of parties' procedural safeguardand one-shot settlement of dispute. The successful mean of resolving the problem of res judicata in Anglo-American law system gives us a verymeaningful suggest.In the third part it analyses the theory of effectiveness of issue whichpay attention to both parties' procedural safeguard and one-shot settlement ofdispute lninutely. The theory of effectiveness of issue is the most reasonablemean to resolve the problem of res judicata. This part expatiates the value, the concept and the development of the theory of effectiveness of issue etc.In addition, this part studies the qualification of applying the theory ofeffectiveness of issue, and analyses the object and subject extent ofeffectiveness of issue deeply and roundly. Finally, this part responds the bugof the theory of effectiveness of issue on the problem of appeal.In the fourth part, based on the comparison and cooperation withcorrelative system, it analyses the enginery of effectiveness of issue. In myopinion, in order to realize the purpose of stabilization of judgment andone-shot settlement of dispute, effectiveness of issue should coexist andcooperate with good faith principle, object extent of res judicata andintermediate confirmative action.In the fifth part, it reviews the evolutive relations between substantialityand procedure, according to the process from res judicata to effectiveness ofissue and from effectiveness of issue to group of procedural fact. In myopinion, the process indicates the importance ofprocedural safeguard to thesystem of effect of judgment, also it shows the changes between substantivelaw and procedural law. Procedural law is not only instrument of substantivelaw, it also has independent value and status. Because of this, the theory ofeffectiveness of issue has very important and far-reaching value in theory andpractice.Finally, in the sixth part, the author puts forward some suggests andideas about establishing the theory of effectiveness of issue in civil procedurein our country. Saying concretely, the theory of effectiveness of issue is asystem asldng for considerable procedural safeguard, so when establishingthe theory of effectiveness of issue, we must establish and perfect thecorrelative systems, which mostly include the procedure of settling issues, the system of renal, the intermediate confirmative action and so on. At thesame time, considering the restriction of actual circtmastances, we shouldapply the theory of effectiveness of issue step by step, and then it reaches theperfect state of the theory ultimately.