Research On The Regulation Of Repeated Litigation

In traditional civil law countries and regions,whether it is based on effectiveness of litigation or based on the negative effect of res judicata,it has become a basic consensus in the civil litigation field of contemporary countries and regions to regulate the parties' repeated litigation on the same matter.This reflects the maintenance of judicial authority and the normative intention of pursuing litigation economics.It is not until 247 of the judicial interpretation of civil procedure law passed in 2015 that China established the basic rules for the prohibition of duplicate proceedings for the first time.The progress of this article is to fill gaps in the legislation and provide a unified standard for the long-term confusion of judicial practice.However,different from what is stated in the foreign legislation example,the “prohibition of double action” refers to the repeated action in the litigation of the predecessor,and the duplicated litigation that has been effective against the pretrial appeal is included in the scope of the judgement.Based on the consistency of the normative effect,Article 247 regulates both types of actions as repeated lawsuits.Starting from the subject and object elements of the lawsuit,it provides a unified three criteria for the identification of two types of repeated lawsuits.At the same time,however,the specific connotation and relationship of the three criteria under Article 247 are not applied conformably in judicial practice,which has also been aroused widespread discussion in the theoretical community,which mainly focuses on the connotation of litigation subject matter and the litigation requests as a compelling element.Relationship between.In this regard,academic research mostly uses the litigation subject theory as a starting point,and through the combing of the litigation subject theory,it establishes an identification standard for the connotation of Article 247 litigation subject matter.It is of course very important and irreducible to scrutinize the rules of duplicate proceedings as the object of study.However,the definition of the litigation subject under Article 247 needs to be combined with the specific context of civil procedure law in China.The normative intention of the next and its connection with the related system come from.Therefore,this paper starts with the normative intention of prohibiting repetitive lawsuits.Based on the basic perspective of the disposition right,we take the understanding and recognition of the trial object as the core conception,in order to provide a reasonable and practical application of the rules of Article 247 on the position of interpretation.This article believes that the parties should play a decisive role in determining the standards and content of the trial object.At the same time,it should also introduce the court's use of the right to explain the object of trial.On the one hand,in case of the excessively large and raid adjudicative referees,it is based on the procedural guarantee of legitimate requirements to avoid the scope of the trial object.on the other hand,through court interpretation to prompt the parties to take the initiative to change or add to the litigation,in order to realize the litigious intention of a one-off solution to disputes under the concept of litigation economy.Specifically,under Article 247,in the identification criteria,the scope and contents of the object of trial of the composition of the lawsuit request and the subject matter of litigation shall be decided by the party exercising the right of disposition,and the litigation request shall be the statement of the litigation.The litigation subject shall not be subject to any compulsory standard.As for the understanding of "the facts and grounds on which the lawsuit request is based",the specific contents of the object of the trial constituted by the two parties should be specifically judged by the contents of the parties' declarations;In the regulation rulings,under the concept of a broadly repeated litigation,it is necessary to combine the use of the court's right to interpret the litigation against the repeated litigation in the suit of the litigant except for a single regulatory measure.Equal regulatory measures to achieve different regulatory effects on different repetitive lawsuits.Here,it is not only in conformity with the legitimacy of the conclusions derived from interpretative methods such as literal interpretation,system interpretation,and purpose interpretation,but also on the premise of achieving full procedural guarantees.In that case,not only that the determination of the same or implicated entity's legal relationship can be avoided,which is the pursuit of contradictory judgement that undermines judicial authority,and at the same time can take into account the litigation economic philosophy of one-off consideration,which are the better exertion of the normative effect of the prohibition of repeated litigation rules in Article 247.