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Research On The Repeated Prosecution In The Civil Litigation

Posted on:2018-09-10Degree:MasterType:Thesis
Country:ChinaCandidate:L Y ZhanFull Text:PDF
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The repeated prosecution is a heavily criticized phenomenon in the civil litigation.China has been regulating the repeated litigation by the principle of non bis in idem until the promulgation of the Interpretations of the Supreme People’s Court on Application of the “Civil Procedural Law of the People’s Republic of China”(hereinafter referred to as “Interpretation”).Article 247 of the Interpretation clearly stipulates that the repeated prosecution is prohibited and the idea of the prohibition of repeated prosecution begins to continuously penetrate into the theory and judicial practice.There are two circumstances of prohibition of repeated litigation in the Article 247 of the Interpretation which includes a lawsuit has been filed during the litigation process or after the ruling has come into legal effect.It does not follow the general practice of civil law country which the prohibition of repeated prosecution only contains litigation dependency while the after the referee comes into effect is bringing into Res judicata category,but to follow the dual meanings of non bis in idem in ancient Rome period and would amount to the non bis in idem.It is difficult to accurately determine whether the two actions constitute repeated prosecution because the theory on litigation in China is still in the stage of the“All flowers bloom together”and about repeated prosecution regulation legislation,academic research and judicial practice is not enough.Article 247 of the Interpretation is the first time to judge whether the two actions constitute the conditions of repeated prosecution.However,it is still unable to avoid the dispute between the theory of litigation object,the relationship of litigation object and litigation claim.The purpose of different types of litigation is different and the purpose of litigation is closely connected with litigation project.The type of litigation affects the standard of identification of litigation object,so we can determine whether the two actions constitute the conditions of repeated prosecution according to the standard of identification which the types of two actions apply different litigation subject.If the two actions are action for confirmation and action of formation,the controversial legal relationship standard of old substantial law would still be used as the standard of identification.If the two actions are action of payment,it is more appropriate to use the two-trunk theory combined with factual reasons as the identification standard.If the type of two actions are different,it should Differentiate and analyze the advanced action of payment and advanced action for confirmation and the advanced action of formation.Where a litigant files a repeated lawsuit,the People’s Court shall rule on non-acceptance of lodgement;where lodgement has been accepted,the People’s Court shall rule on rejection of the lawsuit,unless otherwise stipulated by laws or judicial interpretations which is not to be treated as a repeated prosecution or in compliance with a case of repeated prosecution but not prohibited.
Keywords/Search Tags:Repeated Prosecution, Prohibition of Repeated Prosecution, Recognizing Standard, Typological Analysis
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