| Ab nderungsklage means where the performance ordered by a final and bindingjudgment has not been effectuated, and a significant change of circumstance after theconclusion of the oral argument renders such performance manifestly unfair, the violatedparty could apply for judgment-change trial to claim that the performance or other effectsordered by the original judgment shall be amended insofar as no remedy provided by otherlegal proceedings is available. With the legislation of the action for future prestationespecially those repeated actions and the periodic indemnity system comes to be mostprevalent, the judgment-change trial purses the balance of the stability of law and parties’interests, while the parties sued for the significant change of circumstance after a final andbinding judgment. As a lawsuit system, it gives correlative persons the chance to adjust theirbenefit through amending the performance or other effects which was ordered by the originaljudgment. Meanwhile, this lawsuit system is not only the expanding of Post protection, butalso the consummation of retrial procedure.Therefor, the judgment-change trial has been theimportant part of legislation and enforcement in Germany, Japan and China Taiwan Region.However, In respect of Ab nderungsklage, the scholars in mainland China have not donemuch study to discuss at length or in depth, except for a few skirmishes in the number fewlegal translations works. Accordingly to this paper， it tends to be proved what thejudgment-change trial emerged for through analyzing the development trends of the repeatedactions for future prestation and the periodic indemnity system. There are two basic issuesabout the judgment-change trial, which includes the important analysis both the expanding ofthe time boundary of Res Judicata and the significant change of basic circumstance. The ResJudicata exclusion theory which enriches the judgment-change trial has just adequatelyreflected in the important analysis. Furthermore, it can be a specific lawsuit system in both thecondition of the application and the elements of its nature, which is on the basis ofcomparison of current legal provisions and juridical practice that is in Germany, Japan andChina Taiwan Region, in order to grasp the system more clearly. What is more, thejudgment-change trial can fully play an active role in the litigation system in respect ofmaintaining the judgments unified, litigation economy, and the Post procedural protection, and thus lay the foundation for improving the civil legal system so as to build the localizedjudgment-change trial in China.This paper, which consists of three parts, introduction, text and the end, are over thirtythousand words. The text is divided into five parts.By briefly presenting and analyzing two causes of the judgment-change trial, theintroduction in this paper points out that the appearance of the repeated actions for futureprestation and the periodic indemnity system bring about the judgment-change trial together,in order to make preparation for the following discussion.The text comprises six parts. The first part focuses on the two causes of thejudgment-change trial. On the one hand, with the action for future prestation especially thoserepeated ones have been authorized, the judgment-change trial has been provides a theoreticalbasis view. On the other hand, the way that the periodic indemnity system is tending hasprovided the reality of platform for the judgment-change trial.The second part focuses on basic problem of the judgment-change trial. The first one isthe consensus that is about Res Judicata of the repeated judgments for future prestation.Thesecond one is the key problem to distinguish ‘the significant change of circumstance’ from‘new cause of action’ and ‘new evidence’ to the civil retrial procedure, so as to make thejudgment-change trial more lucid.The third part focuses on the comparative studies of Ab nderungsklage in Germany,Japan and China Taiwan Region, and discusses what the specific content and the respectivelegislative cause is in these countries. The author hackles the Res Judicata exclusion theory,including Billigkeitstheorie and Best tigungstheorie in Germany, and it becomes a theory thatRes Judicata was strong or weak in Japan. These theories above are to further clarify the richcontent of Res Judicata theory. With combining the characteristics of Res Judicata to thejudgments for future prestation, this part of the text is the key point to grasp thejudgment-change trial in-depth, in terms of elaborating on the Res Judicata theory ofAb nderungsklage.The fourth part focuses on Ab nderungsklage both the condition of the application andthe elements of nature. In this part，it also explores the system value of the judgment-changetrial by means of equity as a reference point for judging. At the same time, in terms ofpractice, there are three concerning cases analyzed to be more realistic understanding of thislawsuit system. The fifth part argues about the possibility of constructing the judgment-change trial inChina. Firstly, from the condition of the current laws and regulations perspective, the authorpoints out that two major opportunity of the judgment-change trial is being steadily translatedinto action, including the legislation of the actions for future prestation and the applicabletrending of the periodic indemnity system. Secondly, on the basis of the consensus that thefurther accusation can be tried while new evidences generated by the new situation in ourcountry, the author discusses the feasibility of the judgment-change trial in China from theexpanding of the judgments for future prestation to the true worth of Res Judicata exclusiontheory, as well as the convenience of the research.Finally, in the conclusion part of the paper, with the tracing of Ab nderungsklage, thecomparative study and case analyses, the author not only proposed that it is of greatsignificance to research into Ab nderungsklage, but also pointed out the limitations of thepaper. The author looks forward to the judgment-change trial being the local lawsuit systemin China. |
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