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On The Identification Of The Civil Repeated Prosecution

Posted on:2018-07-02Degree:MasterType:Thesis
Country:ChinaCandidate:R FengFull Text:PDF
GTID:2346330518997667Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
The matter of civil duplicated prosecution has been always controversial in the jurisprudential circle of civil procedure. In consideration of such factors as the avoidance of duplicated trial on the case with the same res judicata is made by the court to prevent from making contradictory judgment, effectively taking advantage of judicial resources and improving the efficiency of dispute settlement, itís not allowed to make duplicated prosecution in principle. However, as to how to define duplicated prosecution, standard of judgment, corresponding countermeasures and other matters, there has not been deep discussion in the theoretical circle. Itís because that such a matter involves numerous core concepts of modern civil procedure law theory such as litigation department and res judicata. The specific stipulation towards the effect of litigation department has not been provided by Chinaís Civil Procedure Law, in which only presentation of the noun is available for res judicata with lack of conceptual definition and explicit criterion of identification. In the face of current specific stipulations under different concepts of civil law system and common law system, there has been inconclusive on the reference in China.Article 247 in The Interpretation of the Supreme Peopleís Court on the Application of the Civil Procedure Law of the Peopleís Republic of China issued in 2015 firstly takes three elements of the litigant, res judicata and litigation request as the elements of identification of duplicated prosecution of Chinaís civil dispute. According to the interpretation from a person in authority of the Supreme Peopleís Court,the reason why that article is added is that the litigant who makes duplicated prosecution through abuse of procedural right in the practice of Chinaís civil procedure for the past few years gives rise to a waste of judicial resources of the court, probably contradictory judgment and further judicial chaos, affecting juridical authority. Obviously, the most direct reason of Article 247 added by the legislator this time is to make the effective identification of duplicated prosecution. However, due to Chinaís historical reasons, res judicata and litigation request do not follow the tradition of the nations with civil law system. As the theory of substantive law of res judicata is adopted, itís difficult to maintain conceptual consistency of litigation request and res judicata. Therefore,as the identification of duplicated prosecution is made, itís easy to induce the chaos of understanding and application if litigation request and res judicata are taken as paratactic elements of identification.In view of these mentioned above, itís rather important to clarify the elements of identification of civil duplicated prosecution and elaborate supporting system of civil duplicated prosecution. This paper differentiates and analyzes the relation between res judicata and litigation request by analyzing three elements of identification of duplicated prosecution and different theories of duplicated prosecution one by one, ultimately putting forward that China should still stick to taking two elements of the litigant and res judicata as those of judgment when making the identification of duplicated prosecution.Simultaneously, in order to coordinate better with the identification of duplicated identification, the relevant supporting systems should be elaborated such as establishing theory of litigation department,intensifying interpretation system of the judge and setting up information sharing system of accreditation registration by the court.
Keywords/Search Tags:Duplicated prosecution, Litigation department, Litigation request, Res judicata, Civil procedure
PDF Full Text Request
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