Study On The Periodic Indemnity System Of The Future Prestation Action

In the Future Prestation Action or the Repeated Future Prestation Action,due to the performance time has not yet arrived or the attached condition has not yet been established, the right which plaintiff claims to the defendant has not been implemented.In the Present Prestation Action, the plaintiff is permitted to file the lawsuit when the right become implemented and the defendant fails to fulfill his obligations.The delayed proceeding become weaker and weaker when it comes to comprehensive rights protection. In many cases,the Present Prestation Action, as a kind of afterward relief means, has its character of delaying and can not adapt itself to the need of the modern right protection. So our practice need the Future Prestation Action which opposite from General Payment Action.However, the future payment rights will breaking the effect of the basic theory which named res judicata when all of them step into the field of litigation.In order to protect the stability of sentence's res judicata,we have to set a limit to the field with interest of sue.Compared with One-time compensation,Periodic Indemnity, as a way of payment,has its features of long-term and repeatability,which accord with the features of the Future Prestation Action,especially for the Repeated Future Prestation Action. The Periodic Indemnity has more advantages than One-time compensation in this field. The Future Prestation Action actually is also a predictive verdict.Although the prediction has considerable basis, the facts on which the verdict built occur after the conclusion of the debate.Therefore,it is possible that the changed circumstances happend in the future.Thus, as a kind of effective means of relief procedure, Change Judgment Action is introduced and become an important component of Periodic Indemnity System.In this paper, in addition to the introduction, the text includes four parts,a total of more than thirty thousand words.The first part is an outline of Periodic Indemnity System in the Future Prestation Action.Firstly, it discusses the basic concept and theory of the Future Prestation Action.Then, carding its development and practice in Germany, Japan and China's Taiwan in the perspective of comparative law. After expound the basic theory of Periodic Indemnity System,the paper analyze the necessity of introducing Periodic Indemnity System.The second part discusses the Periodic Indemnity System from the perspective of legislation and practice.In the legislation inspecting,it introduces extraterritorial legislation,including foreign, China's Taiwan and China's mainland. In practice inspecting,it introduces case analysis.Starting from a real case, after describing the basic facts, this paper analyze Periodic Indemnity System's application situation in our current judicial practice and the reasons.The third part discusses the changed circumstances on Periodic Indemnity Judgment.In the event of a significant change happens to the circumstances,this paper suggests introducing the Change Judgment Action to relieve the parties, followed by presenting the basic theory and extraterritorial legislation of the Change Judgment Action in detail.On the basis of comparison and reference to foreign legislation,this paper proposes to build the system of Change Judgment Action from action objects, substantive requirements, program requirements and other litigation elements.The fourth part which builts on the basis of those above three parts discusses the construction of Periodic Indemnity System on the Future Prestation Action backgrounds. This section which starts from our current situation of the legislation departure, by comparing foreign legislations, trying to conceive constructing the Periodic Indemnity System from the followings:the legislative model, principles,applicable object, selection setting, judgment's making and the legal regulation of non-performance of periodic debt and the others.