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Theory And Practice Of The Negative Confirmation Suit

Posted on:2016-10-12Degree:MasterType:Thesis
Country:ChinaCandidate:J B ZhangFull Text:PDF
GTID:2296330479987946Subject:Procedural Law
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In the civil law countries,the types of suits are divided into three different forms:action of performance,action of confirmation and the action of formation.As one of the basic types of suits,action of confirmation plays an important role on solving disputes and safeguarding the civil rights. The negative confirmation mainly refers to the plaintiff requests the court to confirm a certain legal relationship or facts do not exist,confirm the marriage invalid, confirmed the debt does not exist all belong to this types of litigation.The negative confirmation has the following characteristics:the judgment does not have the payment content,the parties must take other relief means such as action of performance to achieve their right of claim;the legal relationships of the negative confirmation to confirm are real,not imaginary or assumptions;does not involve a specific exercise of rights and obligations,the verdict has not compulsory execution effect.The negative confirmation has the following values:to clear the rights,to prevent disputes and achieve the balance of litigious right.All along,the theoretical circle of our county pay no attention to the importance of the action of confirmation and the research strength is notenough,the legislation also no clear provisions on the action of confirmation,resulting the research level of the action of confirmation lag behind and the theory of the negative confirmation suit has not obtained a better development.In Germany, Japan and Taiwan of China,the negative confirmation suit has been systematic and elaborate study.The negative confirmation suit theory has been widely applied in judicial practice and constantly enrich and perfect,all those is closely related to the legislative support.In 1877,German confirmed the special form of action by law,start the procedure requires the prerequisite conditions of the corresponding,such as the legal nature,legal relationship and legal interests,in practice,this type of action has also been more widely used.Japan has inherited the German civil procedure theory,the negative confirmation in Japan is also approved by the law, and has made great progress and development. On the basis of the relevant provisions of the law, combined with the theoretical viewpoints of scholars,the prerequisite to start of the negative confirmation is clear in Japan : the realistic necessity to start the negative confirmation; the negative confirmation is effective and appropriate.Meanwhile,the negative confirmation has been used widely in practice in Japan.Taiwan "Civil Procedure Law" specifies the negative confirmation,and has been well applied in judicial practice.The purpose of this paper is to find the legal basis of the negative confirmation theory:explain the purpose of the litigation,the benefit of litigation and the litigation subject. It is foreseeable that the negative confirmation as a form of dispute resolution plays a more and more important role in the civil litigation system.
Keywords/Search Tags:the negative confirmation suit, interest of confirmation, exploration
PDF Full Text Request
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