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On The Legitimacy Of Subjective Scope Expansion Of Civil Judgment Res Judicata

Posted on:2013-05-05Degree:MasterType:Thesis
Country:ChinaCandidate:H ShenFull Text:PDF
GTID:2246330371488033Subject:Law
Abstract/Summary:PDF Full Text Request
Res judicata theory is a basic part of civil procedure law, furthermore, the subjective scope of res judicata is an indispensable part of the theory, also refers to one of the most practical significant domain of justice. The doctrine of the relativity of the subjective scope of res judicata is a basic doctrine which can be found in both the continental law system and the Anglo-American law system, that is the binding power of the res judicata is usually found in two intervening parties only. By comparison, the scope of res judicata expansion to a third party can be seen as an exceptive regulation. With a significant theoretical and practical value, the most difficulty of the expansion to a third party is just in exploring the legitimacy. And this is the research object of this paper.Besides the conclusion and the postscript, the full text contains four chapters. To introduce as follows:The first chapter is the paper introduction with four parts, which contains the description of research value and status quo, the doctrine of the relativity, the premise of the expansion of the subjective scope------the analysis of expansion necessity, and the conduct of res judicata in our legislation and justice.The second chapter analyzes the theory evolvement of the legitimacy foundation of the subjective scope expansion, and corresponds to a general remark. Firstly, this chapter discusses the previous theory focus------substance theory, critiques it deeply, and points out that the theory has no significance when to solve some practical valuable problems such as subjective scope and objective scope. Then, the converted theory named foundation theory has been appraised positively, and has a deep research under the topic. Furthermore, some other legitimacy foundations have been analyzed complementally. Finally, this chapter think expansively about legitimacy of law which is the core conception of political philosophy, and find out that the principal basis of legitimacy foundation are the procedure safeguards, which are direct and alternative.The third chapter analyzes the procedure safeguards completely, and especially analyzes the kernel of the topic——the alternative procedure safeguard——with innovations, that is the comparative studies between the "privy" concept of American law system and litigation undertaking system of the continental law system. In addition, the text research the direct procedure safeguard of the nonparties in two parts which are beforehand and afterward, for consolidating the legitimacy foundation.The forth chapter refers to the typed research on the expansion of the subjective scope of res judicata, as a result of the problem nature which is difficulty in abstraction but inclines to developing by prejudications. The analysis are proceeded in theory, local legislation and justice practice in four parts, there are intermediate effectiveness, expansion to the successor of the party, expansion to the tenant on the behalf of the party or the successor, and expansion based on the order of substantive law. Furthermore, the part of expansion to special successor is researched by segmentations creatively, which are divided by two time point——"after litigation" and "in pending action". Otherwise, by independent analysis, it concludes that the expansion based on the order of substantive law is not in the problem domains of res judicata.
Keywords/Search Tags:res judicata, subjective scope, legitimacy, alternative procedure safeguard
PDF Full Text Request
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