The Analysis On The Identification And Regulation Of Civil Repetitive Prosecution

The phenomenon of civil repeated prosecution seems like a kind of stubborn disease existing in the civil litigation field.Many countries and regions from Common Law System and Continental Law System have conducted deep researches on the issue of identifying and regulating civil repetitive prosecution.While focusing on the current situation in China,before the promulgation of the Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China(It is referred as to the Interpretation of Civil Procedure Law below),there is no legal provision about repetitive prosecution.The provision of identifying and regulating repetitive prosecutions hasn't been formulated until the Article 247 of the Interpretation of Civil Procedure Law was conducted,which made the status of lacking provision end and was truly legislative progress.However,when the article is used to judge the issue of repetitive prosecution,it seems too rough to be applied in practice because of being excessively principled.In fact,China's Civil Procedure Law does not clearly define the concept of litigation object,besides,the lack of concepts such as action dependence and issue preclusion has brought difficulties to the identification and regulation of repetitive prosecutions in China.Thus,it is particularly important to clarify the identification criteria for prohibiting repetitive prosecutions and put forward some measures to solve the issue.This article is divided into four parts except for the Introduction and Conclusion:The first part is an overview,including the historical evolution of civil repetitive prosecution,the discrimination with some relative concepts,the value of the prohibition of repetitive prosecution system,the identification criteria and the exceptions regulated by law.The second part focuses on analyzing the status quo of civil repetitive prosecution identification and regulation in China,and points out many problems.For example,lacking support from relevant laws and matching measures in judicial practice,vague identification standard,the harshness systems related to the civil repetitive prosecution.The third part uses comparative analysis method to investigate the civil competitive prosecution of the countries and regions from Common Law System and Continental Law System through the view of academic research and legal regulations.Through investigation and comparison,the author tries to summarize some relevant enlightenment.Firstly,the identification criteria of the same party should be more flexible.Secondly,some concepts,such as action dependence,res judicata and contention effect,should be legislated in our country's Civil Procedure Law.Thirdly,the typical guidance cases should be issued by the Supreme People's Court.Furthermore,more reasons and explanations should be strengthened by judges during the process of judging in a certain case.The fourth part puts forward corresponding solutions to the problems existing in China's civil repetitive prosecution.On the one hand,it closely combines with China's legislation and judicial practice,on the other hand,it makes reasonable reference to the advanced experience of other countries and regions,which is suitable for the identification and regulation of repetitive prosecutions in China at this stage.Moreover,these solutions are somehow constructive to the development of our country's legislation and judicial practice.The author proposes that we should amend the standard for identifying civil repetitive prosecutions in China,that is,we should abandon the three-element theory and adopt two-element theory instead as the identification standard.At the same time,the author emphasizes the importance of establishing relevant legal provisions such as action dependence,res judicata and contention effect,and proposes to try the mandatory counterclaim system and pay attention to the pre-trial disputes sorting procedure.In addition,different litigation object identification criteria should be adopted according to different types of litigation,which is more practical and can avoid attending to one thing while neglecting the other.