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Study On Several Practical Issues In Lawsuit Of Enforcement Dissent

Posted on:2018-05-20Degree:MasterType:Thesis
Country:ChinaCandidate:W W XiaoFull Text:PDF
GTID:2416330542466124Subject:Procedural law
Abstract/Summary:PDF Full Text Request
This paper mainly discusses the selection of judgment thoughts and the relevant practical issues in the lawsuit of dissent by the court.s This paper is divided into three parts:Part One overviews the lawsuit of dissent.Through comparative research andcomparison of legislation practice on the lawsuit of dissent in Germany,Japan,China Taiwan,this part concludes that the lawsuit of dissent in mainland China takes the“generalized” legislative model,and combines with the law to deduce the two core elements of trial in the lawsuit of dissent in China,including “the property status of enforced object”and “whether the claims of the parties involved can effectively preclude enforcement”.On such basis,this paper,in terms of several common opinions on the judgment of the lawsuit of dissent in the theoretical circuit,elaborates that the lawsuit of dissent is a compound new type lawsuit with both the nature of declaratory judgment and action of formation and of confirming the substantial legal relations of the parties involved and precluding courts from enforcement and further concludes and combs its systematic characteristics compared with ordinary civil lawsuits,laying the basis thoughts for the judgment of such cases.Part Two elaborates the present situation and practical dilemmas of the lawsuit of dissent.In the perspective of judicial practice,this part points out through analysis that the lawsuit of dissent is characterized with “complex facts and long trial duration”,“sharp conflicts and fierce backlash”,“frequent false lawsuits and difficult prevention”and concludes and combs practical dilemmas and difficult issues of such cases in the judicial practice in which the first is unclear differentiation standard for dissent of enforcement action and dissent of enforcement object,resulting in the occasional occurrence of the judge's treating the dissent of enforcement action proposed by the parties not involved in the case as the substantial dissent;the second is the disagreement on the relations between the lawsuit of dissent of the parties not involved in the case and ownership affirmation and action of performance in the judicial practice,resulting in different judicial standards and chaotic judicial practice;the third is unclear judgment standard for “civil rights and interests sufficient enough to exclude enforcement”,resulting in different understandings between different courts or judges and frequent occurrence of “different judgments on the same case”.Part Three discusses the choice of the path to judgment thoughts in the lawsuit of dissent.Based on the above elaborations,this part proposes the necessary judgment path for theseveral practical issues in the trial of the lawsuit of dissent.The first is to fully consider the relevant legislative spirits and the mainstream opinion in the academic circuit in China and in combination with the practical trial practice,clearly proposes that the trial of the lawsuit of dissent should adhere to the two basic principles of “interest balance”and “strict examination of evidence”;the second is to establish rules for the differentiation of behavior dissent and substantial dissent by the judges scientifically by comparing the differences of the dissent of enforcement action and the dissent of enforcement object in basic right base,its target,procedural functions and remedy procedures;the third is to summarize and refine the judgment rules for the lawsuit of dissent,ownership affirmation and action of performance in combination with foreign legislative practice and the judicial practice in China,holding that the parties not involved in the case should not be allowed to lodge ownership affirmation outside the lawsuit of dissent and the action of performance proposed by the parties not involved therein in the lawsuit of dissent does not fall under the trial scope of the lawsuit of dissent;the last is to conduct detailed analysis and elaborations on the judgment rules for the civil rights and interests involved in the lawsuit of dissent and the special claims by beginning from the analysis of the civil rights and interests sufficient enough to preclude enforcement and combining relevant typical cases.
Keywords/Search Tags:Dissent of Enforcement, Lawsuit of Dissent, Lawsuit of Dissent of the Persons not Involved in the Case, Judgment Thoughts
PDF Full Text Request
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