The Research On The Criteria Of Defining Idem Of Non Bis In Idem

The courts in our country have a very austere problem,which is that the cases are numerous while the number of judges is small.Since case-filing registration system is implemented,the cases have been growing faster and faster.As a judicial morbid phenomenon,repeated suits not only waste the limited judicial resources,causing the judicial resource more tense,but also lead to contradictory judgments and reduce the credibility of the court.Therefore,timely and accurate identifying that if the case is a repetitive suit and then preventing it before being taken place is a key part of the practice,which concerns the standard of defining "idem".Idem of the principle of non bis in idem seems simple,but in fact it is difficult to judge.Although the Interpretations of the Civil Procedure Law of the People's Republic of China has stipulated the requirement of repeated suits,but the scale of litigation is too big,and the dispute between the old litigation and the new litigation has never been settled.The lack of legislation and the imperfection of the theoretical system lead to the lack of legal guidance in practice.The court is often unable to judge whether it belongs to non bis in idem.The research of the theory in German,Japan,England and American is more developed than in China,but we cannot just copy it blindly.In China,there is so much research on this issue from a theoretical point of view,but the academic circles cannot reach an agreement Pure theoretical research seems to lead nowhere,and there is no chance of making a breakthrough.Therefore,this paper adopts the method of the theoretical analysis and the case analysis,and explores the reason why it is difficult to find the judgment standard,and tries to give the solution to provide guidance and reference for the practice.This thesis includes an introduction and six parts.The introduction starts from a case,and mainly recommends the research targets,and the method.Part one summarizes the theoretical research on the judgment criteria of item,including the relation between the res judicata,and the repeated suits.The second part is to sort out the legislation,theory and practice concerning non bis in idem in civil law countries like Germany,Japan and common law countries like United Kingdom and the United States.Part three is about the empirical research,putting in non bis in idem as the keyword on open law,and searching for the cases from January 1,2015 to June 30,and putting in the 247th of Interpretations of the Civil Procedure Law of the People's Republic of China as the keyword on open law,and searching for the cases from February 4,2015 to October 17,2016,and the standard cases about the judgment criteria of item of Supreme Court.The fourth part finds the problems of our law concerning non bis in idem based on the above theory and case analysis.Part five is the reform and perfection of the problems found in the fourth part.Part six introduces the exception related to non bis in idem.Based on the research of theory and practice,this thesis argues that it is necessary to understand the concept of litigation and litigation request uniformly from the perspective of the type of suit,and therefore we should understand the connotation of facts and reasons.Besides,we need introduce a new judgment standard,which is the focus of controversy,so that we develop the final judgment criteria,which is "litigant + litigation + the focus of controversy + facts".This thesis also uses the case in the introduction as an example to show the specific operation method of the judgment standard,and hopes that the research result in this paper can make contribution to judge whether one case belongs to item timely and accurately.