Study On Determination Of The Interest Of Litigation For Future Prestation

The traditional view is that the interest of litigation for future prestation is mainly determined by the principle that the debt is due for performance.However,with the development of the economy and society and the complexity of the types of disputes,in order to realize the legitimate rights and interests of right holders in a timely manner,both in the revision of the legal system and in the development of the theoretical theory,the scope of future prestation litigation is gradually relaxed.In determining the interest of litigation for future prestation,in addition to considering the timeliness of the realization of the rights,it is also necessary to consider the equal value of weapons between the two parties?the litigation economy and other value orientations.In view of this,it is necessary to screen which disputes can be referred to the court for adjudication;and since litigation for future prestation is the plaintiff's pre-claim for the right to claim prestation that should be realized in the future,the law also needs to restrict such litigation.In other words,whether it is‘screening'or‘restriction',it needs to be judged by determining the interest of litigation for future prestation.Regarding the interest of litigation for future prestation,the German Civil Procedure Law has made explicit provisions in the last century,and the research results such as monographs are richer.Moreover,the German law has been accepted by the Japanese law,and scholars have gained some achievements in their research.The Taiwan and Macao regions of China are influenced by the legal system of the civil law system,and the theoretical research results are also relatively fruitful.Although there are types of litigation for future prestation in theory in mainland China,there are legal blind spots in the interest of litigation theory and litigation for future prestation theory,which lead to difficulties in judicial practice.On the basis of sorting out the litigation for future prestation system and interest of litigation theory,this essay mainly discusses the common criteria and the specific criteria under different types of the interest of litigation for future prestation.Including the preface,this essay contains 6 parts.The preface points out the general research status at home and abroad and the way of thinking.The main part of this essay,contains 5 parts.The 1^st part mainly defines the two concepts of the litigation for future prestation and the interest of litigation at the theoretical level.First,it briefly introduces the object of litigation for future prestation?the future prestation request?and the connection and difference between it and the expectation right in the civil law.Secondly,it introduces the connotation,system value and four characteristics of litigation for future prestation.Finally,it briefly discusses the interests of litigation and related theories,and analyses the relationship between“right protecting”,“the private laws order maintaining”and“conflicts solving”in the civil litigation right theory,with the public law litigation right theory and the interest of litigation.Furthermore,it clarifies the particularity of the interest of litigation for future prestation.The 2^nd part raises the question of the determination of the interest of litigation for future prestation,through the analysis of domestic and foreign cases.Through the case study,it is further clarified that the difficulty in determining the interest of litigation for future prestation mainly focuses on determination of the interest of litigation for future prestation of conditional claim and future tort compensation litigation.The 3^rd part is mainly to analyze the the interest of litigation for future prestation in different types.In the process of determining the litigation interest of future prestation litigation of the claim with time limit,the interest of litigation for future prestation is generally not denied in two cases,that is,the obligor has disputed the existence or status of the obligation and that the obligor has emphasized the importance of timely performance in terms of the nature of the obligation.The future prestation litigation of conditional claim is also divided into pure future prestation litigation of conditional claim and replacement litigation.In practice,the latter usually identifies its interest of litigation,while the former can be discussed in terms of the state of occurrence of the basis of the right of claim or the probability of conditional achievement.The more controversial case is the future prestation litigation of the right to claim damages for tort in the future.For this type,it believes that two pairs of cases should be distinguished and considered comprehensively.Firstly,it should be distinguished from the fact that the basis of the claim to file a action for future prestation is in the future or in a state that has occurred and persisted.Secondly,it is necessary to distinguish the nature of future tort,whether it is a general tort or a tort with public welfare nature.The 4^th part mainly makes a comparative study and analysis of the criterion for determining the interest of litigation for future prestation.Germany and the"Civil Procedure Law"of Macao of China have made a more detailed criterion of determination?adopting enumerative legislative model?,while Japan and the"Civil Procedure Law"of Taiwan of China adopt a general legislative model.After the analysis of the advantages and disadvantages of the two criteria,the focus of discussion is shifted to the specific suggestions on the determination of the interest of litigation for future prestation in our country.The 5^th part draws conclusions on the common and specific criteria for determining the interest of litigation for future prestation,the necessity of filing a action for future prestation,and the eligibility of the claim itself.Of course,due to the extremely limited personal capacity,there are still many omissions and deficiencies in the specific determination criterion and related derivative questions.