Study On The Interest In Declaratory Relief

Declaractory action is one of the three types of litigation,and the interest in declaractory relief is recognized as the foundation of declaractory action.Typical civil law countries and regions have made explicit provisions about the interest in declaratory relief in legislation.In China,although there exists the type of declaractory action in juridical practice,it is difficult to judge whether a plantiff can initiate a declaractory action because of the lack of legal provisions and mature theories on the interest in declaractory relief.The purpose of this article is to demonstrate that our country's civil procedural law needs to explicitly confirm the connotation of the interest in declaratory relief,and to identify the lawsuits from the path of the interest in declaratory relief.So the declaractory action can play an important role in its own functions and effects in practice.This paper is divided into four parts,besides introduction and conclusion,with a total of more than thirty thousand words,the main contents are as follows:The first part is the study of declaractory action and its interest.First of all,pointing out the problems which are existing in practice through the introduction of relevant cases of declaractory action,such as how to define the scope of the object of declaractory action and so on.And the declaractory action can be confined through the interest in declaractory action.Secondly,the concept and characteristics of the declaractory action are expounded.Combining with the research on the basic theory of the interest of action,the evolution process of the relationship between the interest of action which is one of the litigation requirements and the right of action has been discussed.Finally,confirming the particularity of the interest in declaractory action explicitly.The concept of the interest in declaractory relief has relationship with both the procedural law and the substantive law,and it acts as a bridge between the two.At the same time,the path of the interest in declaractory action must be confirmed,and it can help us analyze and confirm declaratory cases in practice effectively.The second part is the comparative study of the interest in declaractory action.Three typical civil law countries and regions are selected to research the legislative provisions and judgment methods of the interest in declaractory action.The three countries and regions are Germany,Japan,and Taiwan region of China.Both Germany and Taiwan region of China have explicitly stipulated the requirements for the interest in declaratory action in the form of laws.Although Japan does not have legal provisions,it has established a normativeproposition on the judgments of the interest in declaratory action through mature theories and judicial precedents.The third part is the judgment of the interest in declaractory action,which is the focus of this article.Drawing lessons from the doctrines of Germany,Japan,South Korea,and Taiwan region of China,we mainly discuss the methods for judging the interest in declaractory action from the following three aspects: First,confirming the appropriateness of object selection.In principle,the object of declaractory action is limited to legal relations,but special facts,the effectiveness of legal actions,the basic facts of the legal relationship,and the right of claim are not necessarily non-confirmed.Secondly,there must have the practical necessity of immediate resolution of the dispute,that means the plaintiff's rights or legal status must be in a state of actual unrest or danger,and the state can be eliminated by the judgment of declaractory action.Thirdly,choosing the appropriate method.Comparing with the action of performance and the action of formation,declaractory action has a complementary nature.In principle,the parties are not allowed to the initiate a declaractory action if they can bring an action for payment to resolve the dispute.The fourth part is the improvement of the system of the interest in declaractory action in China.At the legislative aspect,proposing to refer to the relevant provisions of the Civil Procedure Law of civil law countries and regions in order to establish the the interest in declaractory action in a manner stipulated by law that the general declaractory lawsuit must have.And at the practical aspect,proposing to reorient the interest in declaractory action,and transfering them from the elements of prosecution to the litigation elements which has been newly constructed.At the same time,simultaneously adjusting the structure of the judgement into a two-dimensional structure in which the elements of the prosecution must be reviewed first,and the elements of the litigation and the elements of substantive law must be examined synchronously.The referee will also be adjusted to adjudicate dismissal when the interest in declaractory action is in the absence.