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On The Relationship Of The Parties The Capacity And Capacity Of Civil Right

Posted on:2014-10-20Degree:MasterType:Thesis
Country:ChinaCandidate:Y W TanFull Text:PDF
GTID:2296330467465192Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
Parties theory is one of the three cornerstones of the theory of civil litigation. The partiesdecide the beginning of litigation. The parties who have capacity can become parties.Meanwhile, the capacity is part of the litigation, which determines whether the proceedingscan be accepted by the court. What is the basis to judge the ability of the parties? This issuehas become a problem that a procedural law must face and solve. Based on the relationshipbetween substantive law and procedural law, the first consideration for the capacity issubstantial capacity. While procedural law is a separate legal department, it has its ownindependent value, therefore, the capacity as connective point, which cannot be definedsimply by substantive law. Thus, the relationship between the two is the key to determine thecapacity of the parties. For the issue the relationship of the parties the capacity to be a partyand capacity of civil rights, based on their respective foothold, the substantive law andprocedural law scholars have a different point of view. However, the study on relationship ofthe two concepts cannot be unilateral. Monographic study of the relationship of the capacityto be parties and capacity of civil rights is necessary. Through a in-depth profiling explorationand academic theoretical clarification to reach a consensus, we may offer rules available forthe civil legislation and judicial practice. This article based on the correlation between legaldisciplines, started with the dualism of litigation perspective, in civil law countries for clues,sort out the relationship between the capacity to be countries and capacity of civil rights indepth.This article is composed of three parts by the introduction, body and conclusion. Amongthem, the body consists of four parts:Part I: Overview of capacity to be parties and capacity of civil rights. The purpose of thissection is to start from concepts of the two above, analyses the the both theoretical formationprocess and sort out the similarities of the two. Finally, it should be noted that theclassification of the capacity to be a party in accordance with the theory of the subject oflitigation is not agreed with.Part II: Unification of capacity to be parties and capacity of civil rights. The purpose ofthis section is to explore the specific performance in the case of both unified and reason. Therelationship between the two is more than unified. Which contains the development of legalhistory, from the Twelve Tables to the Roman the formation of the modern legal system based on the purpose of civil litigation, the capacity to be parties is certainly based on substantivelaw. At the same time, the lawsuit studies the proceedings as the research object and thesubstantive law is also a referee specification. The litigation process is the one applicablesubstantive law. Thus the capacity to be parties and capacity of civil rights is united.Part III: Separation of the parties ability and capacity for civil rights. This section isintended to explore the specific performance and reasons why the two are separated. Firstly, itdefines the separation of them, which contains not only the complete disengagement, also theexpansion of its scope. As a basis for the separation of specific performance details, itincludes fetus, corporate and unincorporated organization, especially unincorporatedorganization is the most prominent. To the reason for the two are separated, it begins toexplore the process of litigant decomposition process, which makes procedural rules becomeindependent legal department. Based on the civil law lay down by German Collect code lawsystem, procedural law and substantive law completely separated, began to establish itsown theoretical system. Under the circumstances of decomposition, procedural law has comeup with the different lawsuits purpose doctrine on their own theory. However, based onregulations departure type of civil law, the litigation purpose ought to return to the Protectionof the Rights said. Based on the protection of the rights of the substantive law, procedural lawshould incorporate all private law rights into its protection. It is because of the united situationof litigation qualification and substantial qualification is broken, procedural law establishesthe litigation subrogation, which allows a third party to protect the interests of substantiverights, in particular incorporated organizations.Part IV: Provisions and perfection on capacity to be parties. This section aims to explorethe relationship between the two, and analyses the problems required for the capacity to be aparty and makes sound recommendations. Start from the provisions of section48of the CivilProcedure Law of China, it analyses the problems in our judicial practice. Aimed at a view ofthe capacity to be a party from our scholars, the author proposes a criticism, pointed out thatthe deceased does not have the capacity to be a party. In order to achieve the protection ofthe interests of the deceased, we could use litigation subrogation theory. At the same time, itanalyses the drawbacks of other organization from definition and types. A s for the perfectionof capacity to be parties, it suggests that we should standardize and systematize the legalnorms from view of civil law system. Therefore we ought to redefine capacity to be parties.
Keywords/Search Tags:Capacity of be a party, Capacity for civil rights, The right to appeal, Civil litigation purposes, Litigation play
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