The Theory Of Res Judicata Of Civil Judgment

The Res judicata is that the courts and the parties will be determined by last litigation’sjudgment binding as the universal force of the benchmark results in the judgment for the samematter. In Japan, res judicata is one of the basic legal system in Civil Procedure Law and inthe judicial practice(Japanese Civil Procedure Law114、115). In China, scholars have a lot ofstatements on the res judicata theory of civil litigation, while Res judicata has not prescribedIn the Civil Procedure Law.What is the nature of Res Judicata? What is the the basis of res judicata? what is the roleof Res Judicata and What is the objective range of res judicata?To solve these problems, withthe hope of contributing to China’s Civil Procedure Law,probe the nature,the basis,the role,theobjective range of theory of res judicata and analyze the current situation.The paper contains eight sections.Part1,Introduction. Introduction section briefly describes the basic Res Judicata status ofChina and Japanese Civil Procedure Law. In theory, there’s a lot of doctrine, but China’s CivilProcedure Law still has not provied the res judicata. Analyze the reasons that there is not resjudicata in the Civil Procedure Law.Part2, the nature of Res Judicata.About the nature of Res Judicata,ther is four theories inJapanese Civil Procedure Law.That is the Entity Law theory, Procedural Law theory,realrights theory,and new Procedural Law theory.And the Procedural Law theory is majority injapan now.Part3,the basis of res judicata. About why parties must be subject to the constraints ofthe judgment with Res Judicata of the Court, ther is four theories in Japanese Civil ProcedureLaw.That is the System effectiveness theory, the Dualism theory,and the Proceduralsafeguards theory.Now the Dualism theory has becomed a strong theory.Part4,the role of Res Judicata. The role of res judicata contains a negative role andpositive role. The negative role is that the parties shall not put forward claim or evidence thatContradict with the judgment with Res Judicata, and the court also should not support suchclaim or evidence of the parties. The positive role is, the latter court must obey the previousjudgment which has Res Judicata. Now in Japanese Civil Procedure Law, there is a view that the two roles complementeach other and intersect each other.Part5,the objective range of res judicata in Japanese Civil Procedure Law. In principle,Only the leading paragraph of judge’s review has res judicata.But there is a exception thatoffset of the defense has res judicata with the amount of offset. So the subject matter oflitigation closely related with the res judicata. At the theory or judicial practice, JapaneseCivil Procedure Law has taken the old traditional subject matter of litigation theory (but thePrinciple of good faith is also be used).Part6,Non bis in idem principle in our country. In our country’s Civil Procedure Law,Res judicata has not prescribed, we deal with problems with Non bis in idem In judicialpractice.And the Non bis in idem has two implications. One is the meaning of the Department oflitigation; another is Res judicata. And about the relationship of res judicata and non bis inidem,there are Equalling theory, Difference theory, and crossing theory.Part7,About our contry’s Civil Procedure Law, Res judicata. The idea of he objectiverange of res judicata has already been suggest. That is using the subject matter of litigation asthe objective range of res judicata. And as a exception, the offset of the defense has resjudicata too.Part8, Conclusion. Scholars have a lot of discourse on civil litigation Res Judicatatheory In the Civil Procedure Law, Res judicata is well known by everyone. In order tomaintain the stability of the judgment’s effectiveness, providing the Res Judicata is veryimportant.This Paper has tride to probede the Fundamental issues and important problems inJudicial practice of the Res Judicata. I will continue to study Res judicata in future, and hopethat I could contribute to our country’s Civil Procedure Law。...