On The Relationship Between Civil Entities And Civil Litigation Main

This article divides into four sections.The first section carries on the essential explanation to the basic conceptsabout the civil subject and the civil litigation subject to avoid conceptsdifference. First, in this article the civil subject and the subject of civil right are theidentical concepts, and the civil litigation subject is the subject as litigant. Next, itelaborates the related theory about the personality and the capacity for privaterights. For the legal technology angle, the personality and the capacity for privaterights are identical to express the civil subject qualification, therefore, this articlemainly compares the capacity for private rights and the capacity for party. Whenexpounding the relationship between civil subject and the civil litigation subject.Third, civil litigation subject must be of the procedure significance, which doesnot involve the concrete rights and obligations relations, and this article conductsthe research from the general qualifications aspect.The second section divides into two parts. The first part carries on theinquisition into the subject law system of Roman law, although civil subject ideain the Roman law is quite different from that of modern times, but its originalrelations is unable to ignore. On one hand, civil subject qualifications and thecivil litigation subject qualifications in the modern significance were fusedtogether in the Roman law. In the Roman law the lawsuit subject system does notindependently existed, and it attached to the entity rules. People could beauthorized to file the lawsuit or not was decided by whether he has thepersonality in the Roman law. On the other hand, as a result of the Romansociety's development and the demand of lawsuit practice, lawsuit subjectbecame to expand. The party who did not have the civil subject qualificationswas allowed to enter into lawsuit .And this kind of expansion in turn promoted itsacquisition of legal subject status in substantive law. The second part carries onthe comparative analysis of legislation practices and theories about the civilsubject and the civil litigation subject of the main countries and the areas whichbelongs to continental legal system. And this part elaborates that mainly by thekey of natural person and natural person's organization, and separately carries onthe elaboration to their civil subject qualifications and the civil litigation subject qualifications. First, natural person's civil subject qualifications and the civillitigation subject qualifications are highly unified, even if the subjectqualifications of embryo and deceased which have certain dispute in theory arenot exceptional. Second, elaboration on subject qualifications of natural person'sorganization divides into two parts——corporate body and the non-corporatebody. On one hand, the capacity as a legal subject for corporate body in both civillaw and civil litigation law should be consistent, and should not be restricted. Onthe other hand, the separation of civil subject qualifications and the civil litigationsubject qualifications for non-corporate body, is the deviation of practice andtheory as a result of political factor and the legislator's value orientation inparticular historical period, as well as the legal inheritance and the transplantprocess. The separation is by no means the normal development product of legallogic.The third section carries on the unity of the civil subject and the civil litigationsubject theoretically mainly from three aspects, which are the relationsbetween civil law and civil procedure law, capacity for private rights and capacityof party, civil rights and fights of suit. Certainly, based on the development ofliving as well as the different characteristics between civil law and the civilprocedure law, compared to civil subject the civil litigation subject could haveexpansion in certain degree.The fourth section analyzes present status quo of our country's subject systemlegislation and puts forward legislation proposals. Presently the basic civil law ofChina,"the General provisions of the civil law" adopts dual civil subject structureincluding the natural person and corporate body, which did not acknowledge thenon-corporate body as civil subject. But in some main specific civil lawsnon-corporate body has actually got the civil subject qualifications, moreover thecivil procedure law also acknowledges its subject status. All of these arouseinconsistence between laws and chaos in the judicial practice. So it is necessary torestructure China's civil subject system, in the future civil code to endownon-corporate body with civil subject status, and to establish the ternary civilsubject structure, which includes the natural person, the corporate body and thenon-corporate body.