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Research Of Non Bis In Idem

Posted on:2013-01-06Degree:MasterType:Thesis
Country:ChinaCandidate:J DuFull Text:PDF
GTID:2246330374456612Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
Non Bis In Idem is derived from "Prohibit twice prosecution" which is take shape in Roman, has a long history in procedural law system. The reason why this system can be continued and amditted for other countries to develope and improve, is derived from its ability to objectively reflect fairness value and efficiency value of the procedural law. In practice non bis in idem can end of the proceedings in timely to protect social stability, but also has save litigation costs, improve the efficiency of the role, more importantly, non bis in idem will help to maintain the authority of court and establish the dignity of country.Though scholars have different opinions regarding the meaning of non bis in idem, but all these theories are includ two basic meanings:on the one hand is the effection of litigation system, the plaintiff shall not bring the case again when it enter in the litigation system; on the other hand, the negative effect of res judicata, when the case have been convicted, the parties may not prosecut the same case again. With the international law in national legal systems in depth, the countries of world will be develop and improve in accordance with their national conditions. However, because of the huge setback in legal process and the development process in our country, our legal system has not includ non bis in idem. With the recent law and the international rule of law in our country continue to accelerate, the awareness of national legal and the lever of legal workers are improve, in addition, the scholars of jurisprudence can recognize and research non bis in idem. On the basis of improve efficiency and enhance the judicial authority, the concept of non bis in idem also appears in our civil law, which really made for the improvement of our country’s major judicial step. But we also know non bis in idem in our country as only a rough reflects in procedural law and lack of discussion of the system, especially in the practice for the "one thing",there is no uniform standards of definition, so applications in the case can not achieve good results. For a full description and proof of the above point of view, this paper is divided into four parts.Each part is as follows:The first part is value analysis of non bis in idem. The first part introduces the non bis in idem have historical origins, this system originated in ancient Rome period" Prohibit twice prosecution " theory, and in ancient Rome independent legal period form the two aspects. Secondly, through the introduction of ancient Rome law’s development background, discusses the non bis in idem in the connotation of litigation and adjudged force in two dimensions to form and perfect. Finally, introduces that can be timely termination of legal proceedings, save cost and improve efficiency, and to maintain the authority of the court and judicial dignity.The second part is to introduce the non bis in idem and related litigation theory. First, this part discuss the relationship between ban duplicated prosecution and non bis in idem. This paper will introduce the ban repeated prosecution legal basis, judging standard and trend of expansion which adapt to the development.summarizes the ban duplicated prosecution and non bis in idem in essence is two respects of a problem, both is unified whole. Second, this paper will introduce the relationship between the res judicata and non bis in idem, based on the meaning of res judicata, legal basis and subjective, objective and the detailed list of time scope, the academic research on the relationship between the three theories, and based on this, this paper agree with the relationship of cross and explain the reasons.The third part is the comparison research of continental law system and Anglo-American law system about non bis in idem. Through comparison can find difference, then understand other country’s system, which can reflect our own system. Through the introduction of continental law system and Anglo-American law system which develop on basis of non bis that formed,"one thing" of two big legal system, the definition of standards and non bis in idem applied exceptions, so that know the non bis in idem’s similarities and differences of the two system and their causes. The fourth part is our country non bis in idem system’s present situation and perfection. First of all, pointed out our country’s non bis in idem status, analyzes insufficient idea and practise reason. Secondly, introduce non bis in idem value analysis, and related concepts as well as the two big legal systems distinguish comparative study, know the necessity of system for established in China. Because our country’s legal axiom system, universal human rights theory and related research results of judgment, mature basic condition have proved to be established in our country, it has feasibility. Finally, non bis in idem system design in our country, according to China’s specific national conditions, non bis in idem contain litigation system and res judicata, we will design this system on the basis of the two meanings, then perfect it with other related systems.This paper use the historical analysis method to introduce non bis in idem’s historical origin, thus know great significance of this system; use value analysis to discuss the value of system, resulting the necessary of non bis in idem; then use the comparative method to analyze other countries’ relatively mature system of justice, in comparing the pros and cons understand the necessary supporting program of this system has. At the same time, this paper also made use of much angle, much proof to prove that it exists in our country the necessity. Hope that through this article carries on the research to establish non bis in idem in our law and promote the role in practise.
Keywords/Search Tags:Non bis in idem, The object of litigation, Res judicata
PDF Full Text Request
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