Comparative Study On A Usual Theory

The concurrence of claims has been in existence for a long time, both in Continental legal system and Anglo-American legal system, the difference being that the issue manifests itself in the form of concurrence of cause of action in the latter legal system. Resolving the problem not only serves the purpose of protecting the interested parties, proper application of legal rules but also helps to resolve the problems regarding the theories of object of litigation in the area of procedural laws. Therefore, the concurrence of claims has its impact on both substantive and procedural laws.This dissertation is comprised of three chapters:The first chapter is on the general introduction of the concurrence of claims. Starting with the definition, this chapter defines the characteristics of the concurrence of claims, and theoretically analyses the reasons of the birth of the issue of the concurrence of the claims and its influence during the application of substantive and procedural laws. The concurrence of claims is defined as the situation where a certain fact or set of facts meets serial legal constructive requirements, resulting more than one legitimate claims sharing the same remedy. The reasons for the rise of this issue are1)the categorization mode of legal norms,2)norm-oriented legal thinking mode,3)the different opinions of the legal constructive requirements. Additionally, the rise of the issue leads to all sorts of problems in the area of both substantive and procedural laws. In terms of substantive laws, this issue may lead to the uncertainty of the application of legal norms, re-compensation, and the dilution of the end of legislation; in terms of procedural laws, the issue may cause the uncertainty of jurisdiction, re-trials and the uncertainty of those that are being trailed.The second chapter is devoted to the introduction of the theories and actual practice of the aforementioned issue, both domestic and international, focusing on the classic theories and practice of in our country and other countries. This chapter starts with the introduction and analysis of the theories and practice of the concurrence of claims in Germany, France, Japan, Britain and the USA. Germany and Japan stand out as the representative countries in terms of admitting the rise of the issue of the concurrence of claims, while France opposes with exceptions being made. The precedents in Britain and USA indicate their attitude of limited selective concurrence of claims. Part of this chapter is devoted to the introduction of present situation of the issue in our country. As to the solution to this issue, legal scholars in our country have different propositions. Among those, the discussions among the civil law scholars mainly focus on several specific types of concurrence of claims, and their conclusion is well within the range of relevant theories in Germany. Additionally, procedural law scholars have formed and developed a new theory of Object of litigation to resolve the challenge extended by concurrence of claims to traditional theory of the object of litigation, but the application of the new theory has proved to be problematic in other forms of action. After the introduction of relevant theories and practice both domestically and internationally, several solutions to the issue of concurrence of claims may be summarizedas:1) legislation-determining mode,2)interested parties-determining mode3) judge-determining mode.Chapter3is on the solution of the issue of concurrence of claims. Observing from the controversy among the scholars of continental law scholars, there is simply no single theoretical solution to the resolve of the issue, and the better way is to resolve the issue on a case-by-case basis. Therefore, it is proposed in this chapter that the judge-determining mode is preferable in terms of serving justice, and should be adopted in our country. However, due to the difference of legal systems, this mode should be adjusted before being adopted in our country which means we have to establish the judge-clarifying mode with our own characteristics.