| As the field of substantive law and procedural law work together, litigation is not only involves the cross of public law and private law, but also is the integration of substantial right and procedural form. The development of the legal system decomposes the Actio on Roman law,but the dynamic, specific realization needs to integrate the blending relationship. Litigation of formation is right at the edge. The right of fonllation on substantive law and some longstanding procedural forms confirm and support since the former is recognized, so the former is the right basis while the latter is regarded as the former’s exercise manner, both having the characteristic of shaping the legal relationship, and breaking down the barrier between public law and private law also entity and procedure. Because of the smooth function of right of formation itself and the research limitations of department law, right of fonllation and litigation of formation’s natural connection is regarded as a truism. The substantive law and the procedural law scholars almost acknowledge that, so both of departments of law neglect the research of them.In fact, right of formation as "a power in private law", the relationship of rights and obligations between the main bodies is not ordinary. Obligee’s desposition and the other party’s submission constitute the unequal area of private law. It’s the private relief means of obligee, and they are two parallel operation trajectory whlie the litigation of formation reflecting public relief thought.The formation of litigation itself is opaque, and the types of litigation caused unnecessary confusion. Besides the right basis needs to repositioning, the existing interpretation framework is also difficult to make a very good explanation about it. This article is the very endeavor in view of the nature of right of formation, reflecting on the formation procedure’s standard of form and entity basis and investigating the relationship between them.Except the introduction part, this paper is more than50,000Chinese characters divided into five parts. The main contents are as follows:Chapter one, the definition of the right of formation on substantive law. From the perspective of the formalized disadvantages of the theory on the right of formation, points out that the essence of right of formation is interference to the scope of the rights of others and the other party is on the legal status of submission, thus creating the unequal area of private law. While the formative action right on public law and the formative plea right having contradiction with the nature of right of formation are not satisfying the logical structure of right of formation, they should be excluded from the scope the right of formation;Chapter two, the generation and expansion of litigation of formation. This part investigates the foundation of the litigation of formation to obtain independent and many problems exist in itself. On the basis of the concept of the right of formation summarized and promoted by the theory of the right to request the right protection, litigation of formation is regarded as technical arrangements because of the specific legal considerations. However, the procedural form regarded as a exercise manner of right of formation has demonstration problem and many immature and opaque aspects from the standard to the theoretical basis. The three division method of legal action is not "the end of history";Chapter three, research the relationship between the entity right of formation and litigation of formation. On the basis of understanding of right of formation above, it is a kind of unilateral control field, having similar logical processes in the rights system with right of dominion. It’s the private relief means of obligee, so they are two parallel operation trajectory whlie the litigation of formation reflecting Roman law’s public relief thought because there is essential difference with litigation of formation. The former is more deterrent than the latter, then national factors is only in post review position due to its dominant function;Chapter four, revisiting the relationship between "Right of formation" and litigation of formation. This part makes continuous processing for the formative plea right and the confrontation right. It is different from the right of formation also the right of formative claim on France Law, but in the middle position of them; The formative action right is not independent of support litigation of formation, and its right origin should be a subjective right in public law. It shows a close level right system of "form" right. Directly incorporated the latter into the litigation of formation crosses a demonstration phase. Both formation litigation and confirmation litigation have unsatisfying aspects according to the current interpretation framework;Chapter five, The prompt of theory and practice problems——Replacing the conclusion. Through the above discussion, we come to the proposition which we are trying to demonstrate, then make a directional prompt for future research and an explanation for the practice and the choice of legislation theory. |
