Study On The Interest Of Litigation For Future Prestation

According to the theory of Continental Civil Procedural classification on appeal, The paying litigation require prestation of claims must be made during performance period in principle, But if comply with this rigid principle, When the creditor obtain a judgment in favor to execute, there is no way to achieve in time in actual operation.In view of such a case.With the development of The Civil Procedure Law, many countries have gradually begun to broad the possibility of the litigation for future prestation. However, the litigation of future prestation is to request the court to make judgment for future prestation, The Law needs to impose certain restrictions for this type of litigation, this problem is typically presented in the form of whether they have the interest of litigation.With regard to the interest of litigation for future prestation, Typical Continental countries and regions have carried out clear provisions in their civil law, Although such an litigation for future prestation is exist in theory and legal provisions of China, but because it is no expressly provided about the interest of it, so Lead to a lot of difficulties in practice apply. On the basis,this article is to argument that : The litigation for future prestation is need to be established in the Civil Procedure Law of China, then to improve and refine the judgment standard together with scope of application regard to the interest of litigation.The present master thesis is approximately 30,000 words in total, there are four sections in addition to the introduction and conclusion.The first part is the litigation for future prestation and its interest of litigation. Firstly a typical case is introduced, in order to indicate the problem discussed in this article and how to grasp the scope permitted by the theory of interest action. Then is the summary of the theory of litigation for future prestation and interest, On this basis, analyzes the special importance of complaint interest to the litigation for future prestation together with its meanings.The second part makes a comparative study contrary to the judgment standard for litigation of interest. As the central issue and the legislative focus, through a comparative study the provisions of civil law about the Typical Continental countries and regions. Apparently, there are two legislative model on recognized standards: One is distinguishing different types and then making specific provisions, represented by Germany, Second is an abstract standard as "necessary previously request", Japan and Taiwan of China as the representative. As an abstract concept,our scholars did not argument the depth to the necessary beforehand request, it is need to judge it on the basis of conduction in-depth explication.The third part investigates the litigation for interest of typical types for the litigation future prestation. Because of the complex types of legal coupled with no uniform criterion, it is necessary to distinguish between different types of litigation and then identify their interests. The article discussions about the scope permitted of types in-depth, such as the right of time limit, conditional claims, merger filed a request compensatory, Focus on the litigation for interest for the conditions attached to the entry into force, here multiple short cases are interspersed besides precedents and academic opinions quoted of extraterritorial in this text in order to make more clear argumentation respect to abstruse theories, Hoping to explicit the specific circumstances on the litigation future prestation in future legislation.The fourth part analyzes the judgment of the litigation for future prestation.This form of legal for future prestation is exist in relevant laws and regulations of our country, for instance: anticipatory breach of contract, regular compensation are valid sources of law,but because of hysteresis on theoretical research, it is showing far to meet the demands of future lawsuit for prestation in China. By drawing of extraterritorial provisions of the relevant legislation,the article analyzes specific circumstances applicable to prestation of the complaint for the future detailed,And call for inciting the litigation for legislative provisions explicitly, this makes it possible to be implemented for the present thesis research.