The Waiver Of Claims In Civil Action

As an important part of civil procedure law, waiver of claims system, enshrining theprinciple of disposition in the civil action, highlighting the right of choice of civil procedureof the parties, realizing the double value of litigation benefits and jurisdiction justice, is ansignificant system in the civil action. Waiver of claims is not only the way to dispose thelitigation rights of the parties, but also an approach to end the lawsuit. In civil law of civilprocedure, waiver of claims is a systematic regulations, while in China’s "Civil ProcedureLaw", it’s only a litigation rights of parties, which leads to lack of maneuverability in practiceand greatly spoils its value, lack of comprehensive system to protect makes it is difficult toachieve on the litigant’s disposition about waiver of claims. Therefore, constructing civilwaiver of claims system is not only needs legislation’s perfection, but also needs properpractical operation. To this end, this article starts from the definition of the concept and natureof waiver of claims, through the comparative analysis of the representative of the waiver ofclaims systems in civil law, analyzes the defects within waiver of claims system on ourlegislations and legal practice, on the basis of the extraterritorial provisions of the system,comprehensive judicial live conceives the waiver of claims system.The whole article is divided to five chapters.The first chapter is the definition of waiver of claims.There has different concepts andproperties defined about waiver of claims in civil law civil action theorists, and this chapterfrom many different points of view to determine which best meets the doctrine of waiver ofclaims behavior. In accordance with the behavior and content of waiver of claims, it’sintroduced the classification of the waiver of claims and compared the definition with therelated conceptsThe second chapter is discusses the legal significance of waiver of claims, whichhighlights the independent status and irreplaceable value about waiver of claims in civilaction. The author try to make the overall outline of waiver of claims from the macroscopicangle to lay the theoretical foundation for later expansion in the first two chapters in thisarticle.The third chapter is introduces the waiver of claims system in main civil law countriesand regions. There have more detailed descriptions of the system in Germany, France, Japan and Taiwan of China. And on this basis, the above systems are compared with the summaryand analysis of the system content should be composed of, which provide reference forconstructing this system in our country.The fourth chapter is analyze the flaw of the present system of waiver of claims in ourcountry, which analysis of the absence of waiver of claims system in civil action in ourcountry from two points of view, legislation and judicial practice. Lack of legal normsresulted in waiver of claims is difficult to operate in practice. Waiver of claims are oftenconverted into the right to dispose of other forms of treatment, which caused lost itsindependent status in civil action and its function value is also buried, thus highlighting theurgent construction of waiver of claims system in our real needs of civil Procedure.The fifth chapter is the construction of waiver of claims system in civil action in ourcountry. The system has been guided by the the principle that guarantee the party’s the right ofdisposition and respect the party’s right of choosing procedure. Under the premise of thesystem established, for the legislative and judicial practice problems, constructing the systemin civil action in our country from the angles of subject qualification, the scope of the case,time and manner for the exercise behavior, the force of law and referee way judges.