Research On Requirements Of Litigation In Civil Procedure

Since requirements of litigation had been put forward by Bülow in hisliterature DieLehre von den Prozesseinreden und dirProzessvoraussetzunen,this concept then has become a importantinvestigative field in the theory of civil procedure and subsequently hasdrawn the attention and the research swim of German and Japanese andChina Taiwan’s scholars which has gradually formed a more matureacademic system.Whereas,by reason of the chronically influence frominquisitorial system,in China the civil procedure law has put requirementsof litigation equated to requirements to commence and action,that hasresulted in the beginningoftheProeeedings ‘high一ranking’ and broughtthe puzzle called ‘difficult to prosecute’.Although scholars all alongapply themselves to the research on requirements to commence andaction,however, unless requirements of litigation separate fromrequirements to commence and action, requirements to commence andaction will neither form a system.The value and the sence of requirementsof litigation don’t just rest with the realization of the distinguish withrequirements to commence and action. The function of requirements oflitigation in civil procedure can determine the cases’ verdicts,thereforethe research on material matters,the modes and orders of inquisition andthe judgment will be helpful for the in-depth comprehend and cognitionof requirements of litigation.Though the research of requirements oflitigation in German and Japanese and China Taiwan has gone intomaturity,whereas they hasn’t drawn enoughe attention in our country,thescholars has neither composed many literatures.This article begins from theorigin of requirements of litigation,then anatomy the essence andexpatiate the material matters in detail,and also analyses the inquisitionand judgment,then combines our country’s requirements to commenceand action,tries to separate requirements of litigation from requirementsto commence and action,consequently construct requirements to commence and action over again to resolve the puzzle called ‘difficult toprosecute’,on the other hand perfect the theory system of civil procedurein our country.Tht main body of this article is divided into four parts:The first chapter is the summarization of requirements oflitigation.This chapter begins with the origin of requirements of litigationand intrduce the background Bülow’s theory formed in and thematters.Then this chapter expounds the essence which shows up throughthe comparison with other relative concepts,the understand of essence isthe foundation of requirements of litigation research.The second chapter has expatiate the material content indetail.Firstly,this chapter distinguishes catagories of requirements oflitigation,then expatiate the material content from the genericsignificance,which includes matters about the court,the parties and theobject of civil action and obstacle of litigation matters.The analysis of the content ofrequirements of litigation would be helpful for the practice in civilprocedure,which is also the main part in this article.The third chapter is about the inquisition of requirements of litigationthat plays very important role in civil procedure.This part analyzes howrequirements of litigation been heared in civil procedure in the order fromthe modes,the rankings and the judgment.This part is very abundant andalso the area where scholars argue intensely in.The author tries to bringforward my own point and opinion through the analysis and comprehendof the scholars’different points and the combination with our country’scivil procedure law and practice.The fourth chapter is about the assume of the construction ofrequirements of litigation system in our country,this part is based on thecomprehend of the former three chapters’ content,and combine withactuality of civil procedure in our country,then result in the dauntlessimagination.If we want to construct the requirements of litigation systemin our country,we must find the causation why the system hasn’t formedand that requirements to commence and action are equal to requirementsof litigation.And then if we want to consturct our own requirements oflitigation system,we must separate them from requirements to commence and action,and simultaneity resolve the puzzle called ‘difficult toprosecute’.