The Analysis Of Partial Claims

Throughout the study of civil law countries,partial claims can be called a long-term problems and we have to face it.The reason why this is said,because of partial claims for the subject matter of the object of action,the theory of res judicata itself is a systematic theoretical system,so that scholars study for the partial claims like smoke and mirrors,until now are still under discussion.And in view of the partial claims has been appear in our country,but China's theory seems to have not formed a positive response.The emergence of judicial practice cases,to a certain extent,need to oppose the theory or legislation to give enough attention to some of the request to this theory.Partial claims for such a form of prosecution began in German jurisprudence,for such a credible,creditors can be arbitrarily divided in number,and suits through partial claims for the practice,from the point of view of the substantive law can be done,But from the point of view of the procedural law need to in-depth thinking.Although this kind of prosecution does not make direct and definite provisions in the laws of civil law countries,it is not a special case to use partial claims as a means of prosecution in judicial practice.Which led to the discussion of this issue outside the domain so persistent,can be described as a school of "hundred schools of thought" prosperity.As Japan's legal theory and theoretical research method has always been the benchmark of Germany,so the Japanese theory of this issue in the German scholars to study the existing results of the in-depth study,it can be said that the Japanesescholars on this issue of passion Than the German had gone,from the 1950 s until the end of 2010,this period of "part of the request" of the research results can be described as "sweat".And China's Taiwan region's theroy is come from Japan,and move forward.However,compared with the research enthusiasm outside the region,China's research on this issue is few,China's enthusiasm for this system is not high,the reason may be related to China's litigation policy and value orientation,The subject matter of the litigation is not relevant enough.By strengthening the study of partial claims,it can be used in the application of the subject of appropriate,and specific.Especially in today's litigation efficiency emphasizes the speed of the parties to maximize the rights and interests of the request,making the content contained in this paper to adapt to the development of modern civil procedural law has practical significance.Therefore,i thinks that it is necessary to make a positive response to this situation,and this article is mainly used as the core of the study to discuss this situation,from the current part of the case of our request as a starting point,and cited other similar to the partial claims in the form of claims so we can clarify the content of the partial claims and extension.And on the basis of the analysis of various points of view of foreign countries,the existence of some requests in the theory and judicial practice to identify,and we can summarize that China should be negative attitude of litigation for partial claims,which China's judicial practice of the program response to make recommendations.The ideas of this paper mainly focus on the following:In first chapter,as i said,in the search for the referee document network found that in the judicial process of different courts will make different treatment to this problem,so i will start with several cases to analyze,And then those cases application of the request were listed in order to lay the ground for the following narrative,which I believe that some of our existing systems are very easy to confused to the partial claims so it is necessary to compare the both.In the second chapter,due to the fact that the foreign theorists and practitioners have more discussion on this issue,so i will analyzes the existing theoretical researchand judicial precedents in the way of comparative law,and i observes that this problem which scholars and judges discussed are divided into support and denial of the two factions,the debate between them constantly,each of them have to find a basis to support their own attitude.In the third chapter,i finds out that the partial claims can be identified from the following angles,on the one hand,according to the theory of litigation,and then divided into four points.First,the theory of suits can be identify the partial claims,and that the recognition criteria in the suits to adhere to the premise of the three elements,the first suits and second suits have main body or object facts are the same,second,in accordance with the traditional litigation subject theory to the entity claims there is only one claim in the part claim,so there should be a negative argument in the partial claims.Thirdly,the partial claims is detailed from the specific content of the claim and the angle of the resignation.So that of partial claims should not be accepted by the court.As i see,the existing articles focus only on the enumeration of the extraterritorial points of view,and the similarities in the context of the discussion are confined to the discussion of the subject matter of the object of action in the partial claims.there is a certain degree of extension,not from a larger range of part of the request for in-depth discussion,Therefore it left room for this article to discussion.On the other hand,the aggregation and competition of claims is an unavoidable way of existence in practice.When the parties initiate the above two kinds of litigation in the form of a similar part,whether they are consistent with the partial claims and thus the partial claims of the existence of a certain form is ambiguity,so after the analysis of the situation i think that the two types of cases should not be attributed to the partial claims.The fourth chapter is on the basis of the third chapter and i think the partial claims should be regarded as litigation elements and the court should make a decision to dismiss the prosecution.In addition,i also analysis the partial claims and other related procedures of the convergence made a certain degree of discussion,first of all,partial claims in the veto and counterclaim in the existence of the list wereenumerated,and also list the court's handling of the recommendations;The defendant pleaded against the plaintiff's part of the claim and the counterclaim itself was the partial claims,and made recommendations for the court's procedural response.Although some scholars in our country have studied this issue in the study of the theory of litigation subject and the theory of res judicata,it is difficult for the individual scholars to form a passion for the of partial claims,and the judicial practice lacks the guidance of the theory is bound to produce the referee.If the theory does not form a unified understanding,and judicial practice in the absence of theoretical guidance,then the same type of case can not do the reunification of the judiciary,thus the court's credibility how to self-contact,there is doubt that the parties search the court for relief the number of confidence left is no doubt,so it is very urgent to identify and make positive procedural responses to partial claims.It is expected that the writing of this article will produce the effect.