Research On The Litigation Contract

The litigation contract refers to the agreements of parties of an action onprocedural matters or behaviors, in order to make procedure legal effect. With thecontinuous development of society, in our country’s civil lawsuit field, there are moreand more kinds of litigation contracts. And our country of the legislation about thelitigation contract is limited, the theory on the study of the litigation contract is notthorough, in a large part it doesn’t fit the development of the judicial practice.Therefore, using our legislation about the litigation contract and civil litigationcontract practice sample as a starting point and the end-result, and, absorbingdomestic and foreign litigation contract theory, this thesis make interpretations whichare suitable to China’s national conditions on some basic theoretical issues oflitigation contract.I hope it is good to the development of litigation contract in ourcountry. The thesis emphasize on the legitimacy of the litigation contract and the legalforce of the litigation contract.This thesis except introduction and epilogue, is divided into five chapters.The first chapter mainly discusses the meaning and the effecting requirements ofthe litigation contract. They are the most basic theoretical issues. Based on thedifference of subject of litigation contract and the desirable way to reach theagreement, the thesis defines the litigation contract from the broad sense and thenarrow sense. And I also discuss the effecting requirements of the litigation contract from the following aspects: the parties of signing a litigation contract must have thecorresponding ability, contract form, content shall not violate the regulations andprocedural justice, conditional or deadline issue and the revocation of the agreement.The second chapter mainly introduces the legislation about the litigation contractand the samples from the judicial practice in our country. In2012, the civil procedurallaw of our country was amended again. Therefore, I introduce the legislativeprovisions from two aspects, before the amendment and after the amendment. In thesame time, I select and inspect two samples from the judicial practice about thelitigation contract. On this basis, I sum up two important problems that exist in theapplication of the litigation contract in our country. The first problem is the legitimacyof it; the second problem is the legal effect of it. So that the third chapter and thefourth chapter discuss some issues around the two important problems.The third chapter mainly studies the legitimacy of the litigation contract and itslimits. At first, because of there is debate over the legitimacy of the litigation contract,I cite the different opinions about it. I also put forward my opinion, that we shouldrecognize the legitimacy of the litigation contracts which are not stipulated in the lawin principle. And I discuss the legal basis of legitimacy. Secondly, I discuss theboundaries of the legitimacy. It includes the following contents: the litigation contractshall not violate the force law and damage the social public interests and other’slegitimate interests; the litigation contract shall not violate the minimum requirementof the procedural guarantee; the litigation contract shall not violate the fairness andjustice. Finally, in view of different types of litigation contracts, I make a specificanalysis and evaluation over their legitimacy.The fourth chapter mainly studies the legal effect of litigation contract. Whateffectiveness should the legal litigation contract have? For this issue, the thesisdiscusses the problem from three aspects: The first, does it have disposal effectivenessor the burden of effectiveness? Second, what kind of restraining force shall it be onthe parties and the court respectively? Third, what effectiveness should it have in thearea of the substantive law and the procedural law respectively?The fifth chapter mainly prospects the future of the litigation contract system in our country. Along with the change of society, such as the development of economy,the progress of the concept of the rule of law and the important role of the lawyers,the development trend of the litigation contract system in our country is necessarilyforward, and the application of the litigation contract will be more and more common.Accordingly, the review of the legitimacy and effectiveness of litigation contract willbe more and more open and flexible. But if we want to make it more dynamic andproper development, we must concentrate our efforts on nurturing the concept ofpeople and improving the system of law. Through cultivating honesty and creditconcept and reconsidering the relationship between the judicial power and privaterights, we can lay a good foundation for the development of litigation contract system.In addition, according to the interpretation of its legitimacy and effectiveness, weshould gradually expand and improve the type of litigation contract on the legislation.