The Relfective Effect Of The Final And Binding Judgment

In some types of civil cases, such as an obligee claims performance from ageneral commercial partnership("Offene Handelsgesellschaft" in German commerciallaw), the creditor claims against the principal debtor for his obligation with asuretyship, the lessor claims return of the leased property to the lessee aftertermination of the lease because that the lessee has permitted a third party to use theleased property (with a pursuit), one co-owner asserts the claim to return theco-owned thing against third parties who possess it,the obligee demands (in the wayof pursuit) the performance from parts of the joint and several debtors, there always"comes out" embarrassed problems.That is,in these cases, res judicata("Rechtkraft" inGerman) brought about by the final and binding judgment, whenever win or lose,precludes the same claims by the same parties of the suit only,according to thetraditional principal in German-spectrum civil procedure law. It’s certain that the finaland binding judgement can not bind any other man besides the parties in abovesuits:the members of the general commercial partnership,the surety,the third partywho has been permitted by the lessee to use the leased property,those other co-owner(s) who hasn’t been co-plaintiffs assert the claim to return the co-owned thing,theother joint and several debtors who’re not been demanded the performance by theobligee together with other debtors in former suit.However,if the plaintiffs in formersuits commence an civil action and specify those men who haven’t been the parties inabove suits as defendant,or obtain execution against above men according to formerbinding judgement,how to tackle with it?The essence of the problem is,the suits arerelevant with each other in civil law,If it’s assumed that the former judgement can’tbind those men,and the second suit can be judged separately,the2judgements may becrashed in civil law perspective.One of the resolutions provided by some scholars inGermany and Japan is,the reflective effect("Reflexwirkung" in German)theory.Although this theory has a long history--proposed in Germany150years agoalmost,and the research outcomes such as treaties are fruitful Some Japanese scholarshave accepted this theory,start researching it, also there comes out so many outcomes.Notwithstanding, the start of the research work in Chinese mainland is too late, andoutcomes are rare relatively, compared with those in Germany and Japan. From the factual site of the the reflective effect theory, it’s related tiny with manyissues in civil procedure, such as the theory of the essence of "Rechtkraft","Tatbestandswirkung"(in German,which mens the judgement itself or with other facts,causing legal right or obligation, according to law), issue preclusion(which can benonmutual), the factual effect of an judgement as an evidence, joint action, extensionof the subjective scope of execution effect, even with those theories in civil law, suchas general commercial partnership, divisible performance, joint and several debtors,surety, lease, co-ownership. This essay is mean to provide some resolutions,perspectives and opinions suitable to China law, through describing the reflectiveeffect, other than resolve all the issues in this theory,.This essay, contains5parts, including the preface. There’s almost43000characters in it.The preface, mainly points out the research situation in or out of China, and theway of thinking.The main part of this essay, contains4small parts. The1st part discloses thereason why the theory of the reflective effect forms mainly--suitable and ultimateresolves of suits relevant with each other. The relationship of different interests inmodern society becomes more and more complexer. This, appears in civil action, tobe large amounts of relevated suits. Take surety as an example, the suretyship debt issubordinate to the principal debt in civil law. However, when the principal creditorcommences actions against the surety after the creditor obtains a final and bindingjudgment between himself and the principal debtor on the principal debtor, there maybring out new judgement, which is contradict with the former judgement. There are2solutions mainly: one way is, extension of the subjective scope of dispute resolution;the other way is, extension of the subjective scope of the effect of the judgement, ifother men who aren’t the parties are adequate represented. The discussion of theformer way, will refers to joint action and "Nebenintervention"(in German, whichmeans the third party attends to an existing action--to help the defendant). However,joint action contains some necessary factors; therefore it can’t cover all the relevatedactions, and it contradicts with the main tendency of loosing the subjectivequalification in joint action."Nebenintervention" has been great developed byscholars in Japan, but only in theory; the new theory has not been all accepted by thelegislators and courts in Japan, So it refers to the reflective effect.The2nd part discusses the reflective effect in theory. Firstly, it introduces different theories of the reflective effect in Germany and Japan about theirstandpoint、drawbacks、relationships with each other, such as “Tatbestandswirkung”、theories of extension of the final and binding judgment、“Drittwirkung derRechtskraft”、negative opinions、theory that the nature is of no importance、theory ofextension of issue preclusion. Thus it comes to the conclusion that the theory of“Tatbestandswirkung” should be replaced with theory of extension of the final andbinding judgment, because of its drawbacks. Then it criticizes the theory of thereflective effect with its poor legality. It seems that, there exists none connectionbetween the2parts; however, it’s the negative opinions holding that viewpoint.Nevertheless, insisting on the negative opinions is of no use; it has been proved thatextension of the effect of the judgment is necessary. Although it’s proper to deny thelegality of the reflective nowadays, according to the situation of this country, it won’tbe impossible to admit this effect. So we should still inspect the structure of the theory,to avoiding the disadvantages of reasoning. Besides, there is scarcely any relationshipin rights between ordinary debtors and the judgment of the case of another debtor andthe obligee, which is legal, and it isn’t the reflective effect or extension of the effect ofthe judgment.The3rd part discusses different types of the extension of the effect of thejudgment, on the main standpoint of the extension of the effect of the judgment,connecting to the substantive law in the mainland of China. It examines whether thereflective effect happens or not in types of cases: general commercial partnership, theprincipal debt and the suretyship debt, joint and several debtors, the claim to returnthe co-owned thing, lease. The impacts of the differences between the substantivelaws in Germany、Japan and China on the extension of the effect of the judgment ingeneral commercial partnership and the claim to return the co-owned thing, can inferthat there happens no extension of the effect of the judgment in some privities. Thediscussion on joint and several debtors, can infer that there may contains the extensionof issues preclusion. The conclusion reflects the contents of the2nddepartment of thisessay, deepening the understanding of the variation in the extension of the effect ofthe judgment.The4rd part contains the conclusion of some questions: the suitable resolution ofrelevated disputes, essences of the effect, the scope of the cases in which occurs thereflective effect. Because the theory is extremely opaque to me and I hasn’t grasped some useful languages such as German and Japanese language ashamedly, someissues are still left to be solved by me.