Identification Criteria For “Idem” Of Non Bis In Idem

Non Bis In Idem originates form Rome, having a close connection with the theory of res judicata and subject matter of litigation, and plays an important role in civil procedures. Scholars have made great efforts to facilitate the development of this theory in history, which fully retains the historical heritage of this ancient theory. Scholars tended to study this principle in the respect of criminal procedure due to a combing legal system in the old times.Scholars in continental law usually describes Non Bis In Idem as a rule that criminal acts punished by a verdict shall not be subject to further prosecution and trail. This rule aims at protecting the defendant’s interest and promoting efficiency of criminal procedures. Continental law nations tend to distinguish actions with natural facts and the use of Non Bis In Idem mainly depends on judge’s discretion, which, however, expands the applicable scope of the theory.American law system has a similar mechanism called double jeopardy prohibition. Both U.S.A and U.K have made it a rule by precedents and clarified its constitute elements because more attentions are paid to human rights in these countries. American court tends to distinguish actions with natural facts judged by law. While the standard for U.K court to distinguish actions becomes much more similar to that of continental law with the development of legal system.Compared with foreign legal systems, the study on Non Bis In Idem within mainland china lacks theoretical depth and historical verification. Studies are carried out more in the field of criminal procedure. Affected by Japanese and German scholars, the theory of Non Bis In Idem is hardly mentioned and only with the theory of res judicata. Nowadays, the meaning, applicable conditions, etc of the principle are still disputable without any mutual understanding.Theoretically, some scholars define the principle as double jeopardy prohibition, while some regard it as the role of res judicata. Others believe the theory, on one hand, can prevent parties from repeated prosecution, and on the other hand, can help court to avoid making contradictory verdicts.In practice, the theory is hardly used because of lack of applicable laws and regulations, meanwhile judges feel confused whether and how to apply this theory. On the other hand, judicial practice departments have not reached an agreement on the application of the theory, especially the standard to distinguish actions. The Supreme Court in China once tried to clarify such criteria by guiding cases, but in vain in the end with time passing by and disorder in the current judicial situation has not been effectively rectified.The reason why the Non Bis In Idem is not being paid enough attention to and applicable lie in unscientific legislation and insufficient theory research. Therefore, this article tries to clarify the definition and the identification criteria for “Idem” by verifying its history and drawing lessons from other legal systems so as to put forward realistic path to improve the current situation in general. The article describes mainly the following parts:Chapter I traces the history of Non Bis In Idem, discloses its connections with subject matter of litigation and the theory of res judicata, etc, clarifies its definition, introduces its value so as to tell the reason why this theory is hardly used by analyzing three theoretical disputes and raise more concerns on this theory from both theoretical circles and academic circles.Chapter II explains the identification criteria for “Idem” of Non Bis In Idem. On one hand, this chapter analyzes the identification criteria for “Idem” in foreign legal systems and digs lessons what we could learn from. On the other hand, this chapter describes the legislation and practice of identification criteria for “Idem” in mainland China. However, the newly promulgated civil procedure interpretations are too general to make a rule for the identification criteria for “Idem”, thus a uniform identification criteria is required to smoothly proceed civil procedure.Chapter III describes the reconstruction and restatement of identification criteria for “Idem” on the respect of subjective and objective elements. When identifying the subjective matter, special attention should be paid to different theories of parties. This chapter also discusses and comments on three stages of the development of subject matter of litigation. It is pointed out that in order to solve the disorders in concepts and legislation, the claim for an action shall be used to identify the objective element of “Idem”.Chapter IV proposes a legislative suggestion to improve the identification criteria for “Idem” in China.Whereas the confuses existing in the application of Non Bis In Idem and the identification criteria for “Idem”, it is suggested to legislatively promote the status of Non Bis In Idem, clarify the identification criteria and exceptions for Non Bis In Idem. Furthermore, to achieve an active role of Non Bis In Idem in civil procedure, relevant mechanisms should be established and improved such as judges’ interpretation obligations, case information sharing platform, and judicial rules for abuse of actions.This article uses various methods to find a proper solution to break obstacles restricting the effective application of Non Bis In Idem such as researching on existing data, journals and cases, combing its origin and development, verifying its value and status, digging out root causes for its dysfunction and put forward some suggestions in general respect for improvement by connecting it with other civil procedure theories.It is of great importance to find connections between mechanisms since no consisting part of a legal system can exist separately. The situation is that the application of theories of subject matter of litigation and res judicata are still disputable, let alone the effective function of Non Bis In Idem, which is also acknowledged by some scholars. Hence, it is necessary to consider the links among different theories when discussing Non Bis In Idem and the identification criteria for “Idem”.Although courts at all levels have tried to make the theory and the identification criteria for “Idem” clear through verdicts, random application is fundamentally inevitable even within the same court. Therefore, it is important to have a uniform criteria when judging double jeopardy, dealing with combination, change, separation and abandon of actions or making Non Bis In Idem as a defense and reform the current identification criteria for “Idem”. Moreover, disorder in practice on the other hand, to some extent, pushes enough emphasis be put on Non Bis In Idem. It is expected that the writing of this article could be beneficial to the improvement of this theory.