The Institutional Construction Of Focus Effect In The Disputes

The object of action is the target of parties' offensive and defensive action,and also becomes the courts' judging object.So the scope of res judicata is limited in the decision text in the traditional civil litigation theory,and the finding reasons are excluded.However,the judgment of the disputes' focus in the finding reasons shall have certain binding in the latter litigation.Admitting this has important theoretical and practical value to prevent conflict judgments,promote litigation economy,make up for a lack of traditional theory in res judicata.The common law system and the continental law system adopt "issue preclusion effect" and "fact proving effect"respectively.China's Supreme Court establish "a pre-determined effect rule" to resolve the finding reasons effect in judicial interpretation way.But the unknown theoretical basis,the unlimited scope of rule application,and the controversial legitimacy can't promote the development of judgment effect system.This paper argues that it is necessary to exact the factors which restrict the disputes' effect by functional comparison approaches in compared law(referred to as the disputes' focus procedure guarantee group in this paper).By comparing our procedure guarantee,this paper aims to re-interpret the disputes' focus effect rule.The first part points out the shortage of researching methods in the existing researching results through combing both legal norm and researching achievements in our country,and aims to extract the core problem of this paper.Current study around the disputes' focus between predetermination clause has deficiency such as lacking in practical sample analysis,the system integration of theory and so forth.This paper aims to analyze the representative judgments,and reviews the present implementation situation of predetermination terms.By criticizing the history of generating the pre-determined terms,we can conclude this term is "inappropriate".trying to parse the dispute focus judgment effectiveness factors behind,to reinterpret the dispute focus judging rules.This paper argues that it is necessary to exact the factors which and the disadvantages caused by practice.This paper classifies 232 copies of collected judgments,and takes 23 representative judgments as analytical samples.The judicial practice often cites the pre-determined term to tackle disputes' issue problem,but there are differences in understanding nature and scope of regulation.This operating mode will cause the confusion between proof system and the judgment effect system,litigation raid,aggravating the burden of proof on other side and so on.The third part is to analyze untimeliness of the predetermination effect clause in the current legislative framework.The legal basis of predetermination effect clause has artificial real theory and objectively real theory,and the two theories are horse and horse.This situation not only directly reflected on the understanding the judgment effect in the theorists,also indirectly reflected in the supreme people's court's officially inconsistent attitude.The pre-determined clause came from the former Soviet union,with the transformation of social economic system,the state centralized form has been unable to adapt to the management pattern of modern society.It is inevitable to transfer to responding and dispute resolution type countries in the judicial procedure.As a result,the trial function,social ideology,procedure target of the former Soviet union in constructing the pre-determined effect clause have been replaced the current judicial environment.The fourth part is to introduce the means of settlement adopted by the common law system and continental law system countries when faced with the common focus effect problem.Additionally,this part will analyze the factors restricting disputes'focus effect.The common law system adopts "Issue preclusion effect" and the continental law system adopts "fact proving effect".However,the recent theory of Japan and Taiwan district have gradually turned to judgment effect.This paper puts forward the procedure security group should be resolved into the degree of arranging the disputes' focuses,the degree of judges' interpretation,the degree of reviewing disputes' focuses,the degree of giving special relief,etc.The fifth part is to compare the above factors with currently domestic system.By contrast,our system fails in arranging the disputes' focus,regulating the judges'interpretation,giving common relief channel,making the special relief channel smooth.Only the degree of reviewing disputes' focuses in China's reform objectives can be compared to the United States and Germany.The rest elements are not parallel to them.The above defects in procedure guarantee can't support to introduce the issue preclusion effect.The sixth part is trying to use the current system to reconstruct our disputes'focus effect rule by interpreting theory.This paper maintains that the disputes' focus effect in the finding reasons should apply public document proving rule.But they only have form proving effect,and do not have substantive proving effect.Form proving effect is directly generated based on official documents' presumption.Substantive proving effect needs the discretion of the judges.However,when a specific action policy value demand exceed disputes' procedure guarantee,we should admit the disputes' judgment has binding force in the extreme cases,which is similar to the interrupting effect of res judicata.