The Study On Objective Scope Of Res Judicata

Res judicata theory is an important theory to Civil law system and the objective scope of res judicata theory is the most practical aspect of the system, playing an important role in the theory. However, due to the reasons of construction of powers doctrine and the pursuit of litigation case, the objective scope of res judicata system has not been established in china since the founding of P.R.C which reflects the weakness of the theory and the absence of legislation in legal system, resulting in the confusion of the judicial practice and damaging the rights of the people. This paper tries to establish the objective scope of res judicata system on the basis of the objective scope of res judicata theory and status of judicial.This paper includes introduction, conclusion and four chapters as follows.Chapter one presents the basic theory of the objective scope of res judicata which defines the contents of res judicata theory and the objective scope of res judicata theory. Defining res judicata as the substantive rechtskraft of the judgement, this paper centers on the studies of the objective scope of res judicata in a narrow sense, in particular on the essence and basis of the res judicata and the effects of the res judicata. It also introduces the general principle of traditional legal system of mainland which holds that the principle is limited to the judicial form, but does not reach to the decision reason and makes a detailed analysis of the reasons.Chapter two elaborates on the factors which affect the objective scope of res judicata, makes a discussion of four issues interrelated with objective scope, i.e. the subject matter, the setoff reason, the res judicata of the judgement reason, the problem of partial claim. This paper puts the emphasis on the introduction of the three arguments about the subject matter, elaborating on the reason why the setoff reason can lead to res judicata and its objective scope, making an analysis of the strength objective scope in a tradition perspective and distinction of the weak point and strong point of the expansion theory of res judicata and the effectiveness of issue respectively. Finally this paper makes an analysis and assessment of the problem of partial claim and points out that we should adopt negative attitude in principle.Chapter three exhibits present situation of the objective scope of res judicata of China from the viewpoint of theory and legislation. This paper summaries three kinds of flaw consequences in the trial practice, namely neglecting, expanding or reducing the objective scope of res judicata and makes an analysis of the reasons for the absence of the objective scope of res judicata in China.Chapter four is the establishment of objective scope of res judicata systerm in China which is critical to this article. Firstly, this part analyzes the possibilities of the objective scope of res judicata in China from the economic system and the lawsuit pattern and points out the feasibility of the construction of strength objective scope in China. Secondly, this part makes a construction of the objective scope of res judicata from five aspects, i.e. traditional limits pattern which is limited to the judicial form but does not reach to the decision reason; neue materiellrechtliche lehren employed in the dinstinction of Subject matter; specific factors of the processing requirements of the setoff reason; the denying of judging power to judical reasons which could been realized only when procedure insurance of China is mature; the position that the problem of partial claim is the value judgment question, but not the non-right and wrong judgment question, and it is proper to adopt negative attitude, according to China's national condition. On the basis of the analysis above this paper sets the related provision of law which provides references to the civil procedure law in the future.