Study On The Concurrence Of The Basis Of Right Of Claim

Nowadays, in most cases, the fact of a case has more than one rights of claim, and one right of claim also has more than one basic right of claim. In this circumstance, it constitutes a concurrence of basis of rights of claim. In the case of a concurrence of basis of rights of claim, a party’s choice of the concrete rights of claim directly affects the results of the case, and thus affects the parties direct benefits. From the perspective of judicial practice, the courts’ main and most difficult work is to identify the facts and to apply law. Judge’s confirmation of the rights directly affects the judicial effectiveness and credibility of judgment. To begin with, this paper introduces the case of Kang v. Transportation Company, and puts forward some debated issues.Through analyzing these issues, this author get a conclusion. This paper has four parts:The first part mainly describes the case, and puts forward three controversies, that is, the application of law of the concurrence of the basis of rights of claim, the concurrence of courts’ aufklarungsrecht and the basis of rights of claim, the concurrence of basis of rights of claim and pursing of recovery. The second part mainly analyzes the first controversy, that is, it analyzes the legal issues of the concurrence of the basis of the rights of claim, so that the parties have freedom of choice according to the principle of autonomy. The third part analyzes the second controversy.When it comes to the concurrence of basis of rights of claim, courts has made its aufklarungsrecht,but the party refuses to choose the basis of rights of claim. In this circumstance, how do the court handle this problem? The fourth part mainly discusses the third controversy. After the tort liability doing his compensation responsibility, how can he exercise the right of pursing of recovery to the other tort liability under the circumstance of concurrence of basis of rights of claim?This author believes that in a country’s legal practice, to handle the issue of the concurrence of basis of rights of claim, we must take both substantive and procedural law perspective. Between the principle of autonomy of will and the principle of fairness, the autonomy of will is in the core position of civil law, and the principle of fairness only plays a complementary role, that is, the court should respect the party’s own choice, and make judgment to let the defendant to bear theresponsibility according to Consumer Protection Law. At the same time, when it comes to the concurrence of basis of rights of claim, the judges’ aufklarungsrecht can substantively help the parties. If after the aufklarungsrecht, the party still refuses to make choice or stick on his own choice, the right of claim is still clear, which is in line with the China’s Civil Procedural Law.Judge shall not dismiss the prosecution on the grounds that it has not clear requests, but should carry out substantive hearing on the case, and shall make a judgment to the interests of the parties.At last, after one tort liability fulfill the compensation duty, he exercises the right of pursing of recovery to the other tort liability, and the other party claims that the case should not apply to Consumer Protection Law, but should apply to Road Traffic Safety Law. This claim is not established. Although the case still exists two basis of rights of claim, the case’s object of litigation is Company B requests Company A to compensate B’s damage. That is, the dispute between the two parties is the facts of damage compensation, but not the application of law.