An Empirical Study On The Replacement Of A Wrongful Party

The replacement of unjust parties is a concomitant theory of the parties’ theory,which is controversial both in the theoretical circle for the existence and abolishment of the legislative provisions,or in the specific application of the judicial practice department.At present,people’s awareness of rights is generally improved.The application of judicial means to remedy the rights and interests of the people has gradually become an important way to protect the rights of the parties involved in the dispute,but because of the limited legal knowledge and the difference in the complexity of the case,the situation of the non-legitimate parties in the lawsuit is inevitable,how to effectively determine whether there is a non-legitimate party in a case? How to guarantee the legitimacy and rationality of the replacement of the illegitimate parties has become a common concern in the academic and practical sectors.In this article,through the form of case analysis,in HongGeWei v.Huiyang District Xin Xu Cheng Feng Hardware plastic products factory is a case of,for non legitimate parties and the court to replace the non legitimacy rationality of proper party is discussed in the case of existence.The full text amounts to more than 40,000 words,apart from the introduction and conclusion,the text is divided into four parts:The first part is the case of the basic situation.By HongGeWei v.Huiyang District Xin Xu Cheng Feng Hardware plastic products factory case brief introduction to the basic facts,thus summing up the controversial focus of the case is whether the court should change as the parties,not as the parties how to judge and not just as the replacement of the parties need to consider the factors.The second part is the legal analysis of the case.This part starting from the theoretical basis of unjustified party change,will process the concept of the parties identified as determined as the theoretical premise of the parties,and claims to dualism as the parties to decide if proper identification standard.A comparative analysis is made on the theory of the change of the nature of the change of the non-justifiable parties,such as the change of the lawsuit,the theory of compound behavior and the special behavior.In determining the irregular change based on the theory of the parties,through the legislative blank,theoretical aspects of the optimal method of debate and deals with different methods of judicial practice,on the necessity of unjustified parties to replace.The third part analyzes the conclusion of the case.From the following three aspects,the justifiable defendant’s analysis,the analysis of court’s changing the behavior of the parties and the effect of changing the court’s litigants,this part demonstrates the existing problems in the case and draws the conclusion:The replacement of the unfair parties has its rationality,but the necessity of replacement and the protection of the litigant’s right of litigant should be taken into account in the implementation of the replacement procedure.The fourth part is the enlightenment from this case.This part for questionable content ought to be replaced by the parties or the litigation right of the parties,the judge judicial power and balance of the subjectivity,litigation efficiency and program a girl balance,balance of substantive justice and procedural justice,four aspects to analyze,it also puts forward concrete proposals for the construction of the unfair parties in four aspects,including the initiation of the replacement procedure,the implementation in the first instance,the second instance and the retrial procedure,the bearing of the way of judgement and the cost of the litigation,and the corresponding relief procedures.