On The Res Judicata Of The Action Of Divorce

The action of divorce contains two aspects, among which are the broad one andthe narrow one. The previous one involves only the elimination of marriage betweenthe husband and wife. While the latter one contains not only the elimination of themarriage, but also the separation of the couple’s joint property, and the issue of minorchildren’s custody. The action of divorce is subjected to personnel litigation, it has thecharacter of personnel litigation. For example, the limited application of the principlesof disposition and adversarial, the admission of the doctrine of ex officio in the trialand so on. The subjective scope of res judicata of the action of divorce will expand tothe third party, which is the same character as the personnel litigation. In the action ofdivorce, there is the merger of marriage events and the non-marriage events. The kindof the action merger belongs to the overlap merger of action, which makes itnecessary and significant to discuss the objective scope of res judicata in thisdissertation. The full dissertation is divided into four parts.The first part is mainly analyzing the particularity of the action of divorce.Although it belongs to civil procedure, compared with the ordinary civil procedure,there are a lot of differences and traits of the action of divorce. It does not onlyinvolve the elimination of the marriage, but also involving the separation of thecouple’s joint property. The parties of the action of divorce are specific, who are thehusband and wife of each specific marriage. There are limitations for both parties’right to initiate an action of divorce, and the trial will not be heard in an open court.Furthermore, mediation must be made between both parties before the judge enter intothe final judgment.The second part is mainly discussing the subjective scope of the action of divorce.The action of divorce is an important branch of personnel litigation. And according tothe categories of action, the action of divorce is subjected to the action of formation.The action of divorce admits the doctrine of ex officio, which allows the interventionof the prosecutors, and limits the application of adversarial principle. These traitsprovide the rational basis for the theory of expanding of res judicata on the subjectivescope of the action of divorce.The third part is mainly analyzing the objective scope of res judicata. The narrowaspect of the action of divorce only involves the elimination of the marriage between the husband and wife. The res judicata of the narrow aspect of divorce judgmentusually enters into effect according to the ordinary rules of civil procedure. Butattention must be paid on the limitation of repetitive action of marriage. The broadaspect of the action of divorce contains the dispute of marriage, the custody of theminer children, and the separation of the property. Among them, the dispute ofmarriage is the key subject matter of action, and the other are subordinated matters onthis issue. So the dispute of marriage has the priority to be solved in the course of theaction of divorce.The fourth part is mainly about the time range of the res judicata of the action ofdivorce. According to the general civil procedure, the res judicata enters into effect assoon as the oral debate procedure ends in the court trial. But, the res judicata of thejudgment which decides to maintain the marriage will not enter into effect after theprocedure of oral debate. However, in the action of separating the joint property of thecouple, which is the element of the merger action of divorce, the res judicata of itbegins to take effect according to the general rules of civil procedure. Only if the jointproperty of the couple varies after the oral debate procedure in the court but before thejudgment takes effect, can both parties initiate new actions for the separation of thevaried property. And the action of the custody of the miner children, which stands foranother key element in the merger action of divorce, is just the same as the action ofseparating the joint property.