The Source Of The Actio

The theory of actio is one of the basic theories in the science of civil procedure law incivil law system. The interpretation of the“actio” is a basic to understand the theories of thecivil litigation, it can be said to be the first building block entering the civil procedure law.Therefore, the maturation of the theory will help promote the theorization and systematizationof the civil procedure law. This article pointed out that the actio research firstly depends onthe accurate understanding of the concept of actio from the debate and diverse phenomena ofthe actio research, and used this issue “the source of the action” as a starting point, from theconcept of historical perspective. Through to the Rome law and the civil law the twohistorical periods of legal system make an on-the-spot investigation, stating that the term"actio" is derived from the two theory systems, the concept has a support from rich historicaldata and deep theoretical resources, and stressing that the concept of actio in modern law onthe emergence and development of the concept is a result of methodology. This paper aims toreveal: even in the common law origin, the methodology jurists and legal experts stick todetermine their view of the basic position of the law.The body of this paper can be divided into five parts:Part I: Introduction. From the theory of actio in Germany and Japan, consisting mainly ofcontinental law system countries and regions and China’s current research present situation,the “actio” as key words, pointing out the significance of theory and practice in China’scurrent situation of the legal system of civil action concept, putting forward the inspection of“the source of the actio” is the issue need to be studied, explaining the idea of writing.Part II and Part III: History of ideas about actio. Firstly, making clear that Rome law onthe concept of actio laying a foundation, it constitutes the historical foundation of the concept.Then from three factors with natural law, state and personality in the Rome law, this paperanalyses the origin of the idea about actio, and points out that the separation of the twoprerequisite concepts “Ius” and “Right” is the necessary condition of the modern concept of actio.Part IV: Methodology of Continental Law System. Taking the generation of continentallaw system as a background points out the significance that methodology create the modernconcept of actio, and then reviews the contributions in modern Germany jurists on the concept,elucidates the three factors including methodology, law system and ideology is the root causeof the differences on the theories of actio.Part V: Not the conclusion. Philosophical reflection for the role of terms to subjects,using Foucault’s discourse theory and Popper’s view of science points out: on one hand, termshas improved the production and exchanges efficiency of the academic; on the other hand, thepopularity of a term from scholars, is applied to the reader into a common sense, becomes akind of power discourse. terminology is the weapons scholars challenge the old system, but atthe same time it will become the new shackles for theoretical development, and the challengeto the knowledge renewal.This paper uses the historical research method, to undertake macroscopical investigationon the concept of historical origin, development and modernization.