Study On Change Procedures Of Periodic Payment

In cases of personal injury compensation as well as support and raise case,the court may give a judgement that a party shall pay a specified amount of money to the other party on a regular basis,which is "the Periodic Payment judgement ".In terms of the Compensation for Personal Injury,the Periodic payment judgement has been established in the Articles 33 and 34 of the “ Interpretation of the Some Issues concerning the Application of Law in the Cases of Personal Injury Compensation ” by the Supreme Court of the People’s Republic China in 2004.In the course of the execution of the periodic payment judgement,if there are major changes about the basic situation established in the original judgment,it can be unfair about the periodic payment confirmed by the original judgment possibly.At this time,the litigants should be allowed to take certain measures to change the periodic payment judgement in order to obtain the corresponding relief,which is the procedure of periodic payment relief.Although there is no specific provision about the changed procedures of the periodic payment judgement in the legislation level in our country,it has been identified the non-retrial exceptions that changes are proceeding in Articles 248 and 218 of the “ Explanation of the Application of the <Civil Procedure Law> by the Supreme People’s Court ” in 2005.This provides space for the improvement of the changed procedures of the periodic payment.In this paper,the above problems are studied in four parts:The first part is about the judicial status and reasons of the Periodic Payment’ s procedure in China.The content of the legal norms concerning the Periodic Payment’ s procedure is extensive in our country.And the judicial practice is not consistent with the understanding and application of the legal norms.Meanwhile,the scope of accepting such cases and the requirements of admissibility are quite different in different courts as well as the argument of the relationship between the judgment and the related proceedings(such as the basic judgment)is also different.However,the reason for this situation is that the legal norms themselves are vague about the scope of accepting cases,accepting conditions and the choice of relief procedures.The second part is about the procedure selection of the Periodic Payment change under effective laws.There are differences between the changing elements of Periodic Payment judgment as well the procedure of retrial and the filing of petition for dissent as well setting of procedure itself,so it is impossible to choose to apply the existing post-relief procedure in our country.Because the change of Periodic payment is an independent relief procedure.The third part is about the application of the procedures for Periodic Payment change in Taiwan.On the premise of admitting the extension of the time range of Res Judicata of basic judgment(periodic payment judgement),the mainstream theories of Civil Law as well as Germany,Japan and Taiwan allow the basic judgment to be modified by filing a suit for alteration of the Periodic Payment judgment.It is a consensus reached in the mainstream theories of "Balance Theory","Confirmation Theory" and the theory of Japanese Law weakening the Res Judicata of basic judgment that the action of alteration of Periodic Payment judgment is to obstruct the Res Judicata of the former suit through respecting the former judgement of the Res Judicata under the exclusion theory of Res Judicata.The fourth part is about the improvement of China’s Periodic Payment’ s change procedures.To unify the scope of accepting cases,the procedure for alteration of Periodic payment may be applied to the Article 218 in the “ Explanation of the Application of the <Civil Procedure Law> by the Supreme People’s Court ” concerning the alteration of judgement.It may also be further applied to the action for variation of the judgment provided for in Article 248 concerning a judgment for the payment of a fixed term payment due to personal injury,such as compensation for disability,fees for disabled assistive devices and changes in the living expenses of dependents.The application of Periodic judgment change is an independent relief procedure."New reason,New fact" is different from the new reason that happened after the current prestation decision benchmark,or the new evidence in the retrial procedure,which is issued by the alteration of Periodic payment.It is necessary to clarify the relationship between the former and the later.The action of alteration of Periodic payment judgment is the procedure of a special right relief between the Res Judicata or execution of the former action under the precondition of maintaining the correct judgment of the former suit.It is necessary to clarify the requirements for acceptance.And the action of alteration of Periodic payment judgment should be based on the fact that the content of the decision is not yet fully realized.As a kind of special right relief,the action of alteration of Periodic payment judgment should be strictly restricted in its admissibility requirements in order to be applied as a kind of post-relief procedure.