On The Principle Of Lis Pendens

Repeated litigation has been an important issue interfering the civil procedure, althoughthe res judicata has an effect on repeated litigation, but it can only effect on repeated litigationand trial based on the same event after the judgment. In china, so long the problem ofrepeated litigation in the period of pending action has been ignored for that the phenomenonof multi-complaints on one event takes place frequently in judicial practice. Paralleling to thesystem of res judicata, the priniple of lis pendens exists independently. It is a precautionarymeasure with positive features of preventing the contradictions between two relatedjudgments, realizing economical litigation principle, promoting focusing on resolvingdisputes, etc.The principle of Lis pendens inherits from the principle of nebis de eadem re sit action ofthe ancient Roman period, it is in-depth study and long-term practice in Germany, Japan andTaiwan. This paper will refer to the practical and theoretical development of the principle ofnebis de eadem re sit action, and analysis the introduction and establishment of the principlein brief.This paper contains four parts except the introduction and epilogue:The first part is the summary of lis pendens. This part firstly reviews the history of lispendens, then states the principle of nebis de eadem re sit action of the ancient Roman periodabout its specific operations and inheritance with development in the civil law countries andregions. In addition, it indicates the concept and types of repeated litigation combined withthe theoretical and actual situation in Germany, Japan and Taiwan, along with the legalattributes and purposes of lis pendens.The second part is the applicable rules of lis pendens. This part states the applicable rulesof the principle, including the applicable time limits and the boundaries of the subjects andobjects, and indicates the legal effect of lis pendens. Lis pendens is applied in strict limitationof the period of pending action, but there are different points about the occur time in theorycircle, so to clarify its concept and time node comes to the primary content of this part. Thepractice of lis pendens is influenced by the theory of Subject matter of litigation and limitedby the forms of right protection indicated by notice of appeal. This part focus on thesecontents in a panoramic interpretation with method of modal analysis. The third part is the new development of lis pendens. Based on jurisprudential analysis,this part states the broaden scope of application in Germany, Japan and Taiwan, responsing tothe obstacle to lis pendens which is produced by the mindset of unified construction of thetraditional theory of subject matter of litigation. Europe’s theory of core issues impels Germanscholars to reflect the construction of subject of litigation and the limited application of lispendens; Japanese scholars, represented by Professor Xin tangxingsi, also advocates toexpand the application of the principle, and proposes the repeated litigation based on the samemain points, the same request, etc; Professor Luo yongjia in Taiwan even puts forwards a newtheory, called the new same event doctrine, based on the System purport and legislative intentof lis pendens. All kinds of the new theories advocate to expand the boundaries of objects andset different types of legal effects to different repeated litigation. The trend to expand scope ofapplication must be based on the rules of related litigation or such the same requirements. Italso should be supported by protecting the party`s procedural rights, balancing the interests ofprocedural law.The forth part is lis pendens in China. This part firstly interprets the current situation andproblem of repeated litigation in theory, legislation and judicial practice in China, andindicates the necessity to establish lis pendens in China. In addition, it includes specificrecommendations to build and apply the principle. To regulate the repeated litigationreasonably and effectively, this part indicates other security recommendations.