Can Right Of Formation Be Claimed After Reference Time Of Res Judicate Is Over

In the field of the reference time of res judicate,the issue that whether right of formation can be claimed when the reference time of res judicate has passed,has been heavily discussed in civil law,especially in Germany,Japan,and Taiwan,China.The issue can be understood that right of formation such as right of rescission,right of offset and right of cancellation and so on,doesn't be claimed,which already exsited before the end of the reference time of res judicate,so can the owner of right of formation still enfoce the right when the time is over? Considering that China promulgated the judicial interpretation of civil procedure in 2015,and the article 248 is regarded the standard of the reference time of res judicate in our China's civil procedure law system by some scholars,it is too late for China to establish the basic rules about the reference time of res judicate,so as the advanced issue in the reference time of res judicate,there is a theoretical research blank in China's civil procedure law,and to some extent,the issue that this paper prepares to solve is a big challenge for China.However,in judical activities in China,some judges and lawyers have some arguments—whether right of offset can be claimed during the civil implementation,and how to invoke the objection to the cancellation of contract—which are resemble the thesis of this paper.In general,it is a difficult but a meaningful study,which is not only helpful to perfect the theory of civil procedure law,but also provide some advice for judicial activities.According to research methods in Germany,Japan and Taiwan,China,there are two ways to solve this issue.The first way—with right of formation as study object—takes the holistic study model,while the second way—with right of rescission,right of offset and right of cancellation as study objects—takes the classification study model.Because of the perfect civil procedure law system in Germany,the German scholars mostly choose the first way.And the common view is said if reference time of res judicate is over,right of formation cannot be exercised in any case.Japan and Taiwan,China which take the second way,distinguish the type of right of formation,so the situation is more complicated than Germany's.It can be concluded that different views and cases reflect different values or attitudes,especially the difference between two values—the stability of the law and the procedural guarantee of the parties.Due to the legal process and thinking mode is closer to Japan and Taiwan,China,so it is more suitable for China to take the second way to solve the issue on whether right of formation can be claimed after reference time of res judicate is over.Now that choosing the classification thinking model as a study method,the existed troubles in China also cannot be ignored.At present,the reference time of res judicate in article 248 in China is after the judgment comes into effect,which is different from the civil law's rules,and this difference makes research work on civil procedure law in China inconvenience,in addition,the conflicts between civil procedure law and civil law are unavoidable but intense in legal system in China,so in order to solve this paper's issue,the first step is to deal with the two problem as mentioned above.If reference time of res judicate is corrected by set up the adversary principle and the conflicts between civil procedure law and civil law are mitigated,it has an opportunity for China to do the further study that whether right of formation can be claimed after reference time of res judicate is over.And then in the case of right of rescission and right of cancellation,correcting the party's accountability,and with the help of the judge's interpretation and explanation,the issue that whether right of rescission and right of cancellation can be claimed after reference time of res judicate is over will be solved.But there is a point needs to be noticed that right of cancellation should be discussed respectively,because in civil law system there are two specific types of right of the cancellation.As for right of offset,it involves another substantive legal relationship,so it is hard to identify the owner of right of offset has responsibility to exercise right of offset before reference time of res judicate.Except introduction and conclusion,this paper is divided into six parts:Chapter 1,the issue that whether right of formation can be claimed when reference time of res judicate is over is been put forward by analyzing and introducing the concept and meaning of res judicate,and then briefly explains its fundamental connotation.Chapter 2,combined with the theory study and judicial activities in China,points out three difficults which is not conductive to resolve the issue,and points out the reasons why the difficults mentioned above exist in current China.Chapter 3 introduces and evaluates some views in the first way which with right of formation as study object,then indicates that the first way is incompatible with civil procedure law in current China.Chapter 4 introduces the second way—with right of rescission,right of offset and right of cancellation as object—and presents some Japanese and Taiwanese scholars' and cases' views on whether right of formation can be claimed after reference time of res judicate passed,then makes an assumption that if China takes the second way like Japan and Taiwan,China,whether there is a possibility for China to resolve the issue by using or modifying the current civil procedure law system.Chapter 5 is based on the chapter 4,which comes to a conclusion that the second way—with right of rescission,right of offset and right of cancellation as object—is more suitable for current China to resolve the issue,even so,there are three existed obstacles mentioned in chapter 2 needs to be cleaned off firstly,so adjusting the reference time of res judicate from the judgment goes into effect to the time of the end of the oral arguments,and amending articles to minimize and reconcile conflicts between civil procedure law system and civil law system.Chapter 6 provides some specific suggestions or solutions to resolve the issue that whether right of rescission,right of offset and right of cancellation can be exercised after reference time of res judicate is over,according to the current legal rules and the preparation done in chapter 5.The solutions will not be perfect,but at least it offers a direction to civil procedure law in China.