Analysis Of Prohibition Repeated Prosecution

Since 2015 Explanation of Civil Procedure law imports “Non bis in idem” and prohibit repeated prosecution rules,gradually rule prohibiting repeated prosecution has gotten Civil Procedure Law academic attention,scholars generally believe either in our country or civil law countries,the rules prohibit the prosecution theory and repeat practices involve many problems,the most critical is how to review and judge "repeated prosecution." Suing explanation given 247 Elements connotation is too small and too large extension of the applicability weak and can not meet the practical needs of judicial practice caused by different courts on the same understanding of the rules and apply varying and conflicting,contradictory,in addition,Since the rule prohibiting repeated prosecution theory involved more widely,nor an explanation can cover.On the other hand,since the study of domestic scholars prohibit repeated prosecution rules the ascendant,is still confined to the introduction of foreign institutional level,the national court has not been able to bind specific referees Problems conduct a comprehensive study.However,the clear prohibition of repeated prosecutions related to the specific content and legal effect of the various constituent elements of the rules,by suing an academic explanation 247 were re-explain,very conducive to prohibit duplicate rules are reasonable and efficient prosecution of the application.In view of this,I believe that it is necessary to prohibit repeated prosecution proceeds rule-related issues discussed.This article includes introduction,body and conclusion of three parts.Text consists of five parts:Part I: Introduction and Case referee PROBLEMS.This section shows by lifting the prohibition of repeated prosecution typical case of the relevant rules,put forward the people's court in the application of the rule prohibiting the prosecution repeated problems in order to elicit the rule discussed in more detail below.I combine theoretical case that the court in the application of the rule prohibiting repeated prosecution exist "the same parties before and after the judge complained of mechanical standard too","identification standard subject matter of litigation led to the application of different chaos","repeated the prosecution's review limited to the parties the statement " and other issues.Three typical cases listed in this section are,of course,does not reflect the court ban applies to all the problems of repeated prosecution rules,but this problem has three quite representative,is an important problem that this article will concentrate to solve.The second part: this part deals with the relationship between the principle and the prohibition of repeated prosecution.Through clarifying the connotation and rules of prohibition of repeated prosecution standard purport of a preliminary understanding,the rules of the prohibition of repeated prosecution.And then based on the research perspective of comparative law,the connotation of the principle should be ignored,so as to make clear the relationship between the principle and the prohibition of repeated prosecution rules.Because this paper mainly studies the litigation department under the context of prohibition of repeated prosecution rules,with the same idem principle of res judicata theory,relation and difference between existing exploration of the two,in order to avoid confusion in understanding the process of application.Part III: Rules prohibit repeated prosecution Elements.In this paper,"two—same theory" mainly launches the elaboration from two aspects of the parties and the subject of litigation as standards for judge whether the former suit and the later suit are parallel.Common point of contention isn't not as an independent constituent elements and can only be used as a standard to judge whether both suits are the same dispute.In addition,of course,belong to the same party before and after the complaint against Repeated Prosecution Rule Elements,under the broad prohibition of repeated prosecution rules,different parties before and after the complaint may still constitute a repeat prosecution only after the plaintiff filed a counterclaim claim in the former suit but not a separate lawsuit.Part IV: Prohibition repeated prosecutions under the rule of the defenses and offset part of the request.This section focuses on appeal before the parties in the appeal to the same claim and counter-claim for offset separable creditors were subject to the court to ask questions of the request.The former includes the first lawsuit,defend and advance the coexistence of three types of defense,since court's verdict already has res judicata,while the claims made by the payment decision has no direct effect changes in rights and obligations,it can allow the parties to be indicted defense,not vice versa.Discussing part-request in the context of the Prosecution Repeat prohibited isn't tough,general theory supposes that it should be solved by the expansion of complaint without allowing the parties a separate lawsuit.Part V: Prohibition repeated prosecution remodeling rules.This section includes the prohibition of repeated prosecution institutional arrangements and rules applicable to the specific method of prohibiting repeated prosecution rules.First,the court has discretion to judge whether one party's sue violate the rule of Prohibition repeated prosecution,besides,the other party can raise a type of defense to exclude the jurisdiction of the court.Secondly,the rules prohibit the prosecution repeated stays close to the res judicata effect,but it is blocked at both ends,both rules should be regulated respectively,because parallel regulations applicable easily lead to confusion.