Study On The Methods Of Judgment Division Of Res Communes

The method of segmentation is the core content of court judgment in the division of litigation.However,the lack of elements in the division method makes the judgment of the division method applicable to the trial but actually non-litigation.Therefore,the standard of the court to determine the reasonable and appropriate segmentation method is the key to the lawsuit.This paper intends to study the method of community referee segmentation from the perspective of the combination of procedural law and substantive law.Based on the nature of the lawsuit of the division of the common object,the method of the referee segmentation is the center,and the extraterritorial system,especially the Japanese division of the common object,is used.The provisions of the lawsuit,in order to clarify the nature of the lawsuit of the division of the commons,and on this basis provide a more operational rules of referee division for the division of the common objects.This text has more than 30,000 characters and is divided into four parts:Part I: Questions.According to the general theory of our country,there are two kinds of disputes in the settlement of the lawsuit of the division of common property: one is whether to divide,the other is how to divide.The former is the dispute of the legal relationship of the claim for the division of common property,and the latter is the dispute of the legal relationship because of the lack of the forming elements of the division method,not the dispute of the legal relationship.The combination of disputes of two different natures leads to a difficult theoretical understanding of the division of common property litigation,and the theory of its nature has not yet been concluded.The inadequacy of theoretical understanding makes the court at a loss in determining the segmentation method.How to choose the appropriate segmentation method from various segmentation methods remains to be rethought and solved.The second part:Re-discussion of the nature of the lawsuit of the division of common property.In this part,through the analysis of the disputes between the right of claim for the division of common property and the right of formation,it is concluded that the right of claim for the division of common property should be defined as the right of formation regardless of the division of agreement or the division of judgment.From this point of view,we can find that it is more reasonable to limit the scope of the lawsuit to only resolve the disputes of the method of division than to deal with the unified procedure.Based on this,because of the lack of the forming elements of the partition method,the court can not judge on the facts of the elements and apply the law,so that although the lawsuit is based on the form of litigation,it is actually non-litigious.The third part: The diversification analysis of the division methods of the common property judgment.By investigating the legislative cases of the judgment mode of the division method and analyzing the mode selection of our country,the system and applicable rules of the division method of judgment in our country are sorted out: in principle,the division of the original is priority,and the division of the original is applicable to the discount division or the division of the variable price when there is a risk of impairing the value of the original.On this basis,it seeks to draw lessons from foreign experience,focusing on the softening process of judgment segmentation methods in Japan and Taiwan,and considers that there are significant differences between the discount segmentation and the original segmentation and the variable segmentation in terms of applicable elements and effects.At the same time,it can be incorporated into partial price compensation,partial segmentation and merger segmentation to improve the segmentation method system.Part IV:Reconstruction of the rule of division of joint property judgment.This part starts with whether the partition method advocated by the parties is binding on the court,and then analyses whether the partition method is binding on the court.Because of the lack of elements for the formation of the partition method,the litigation request of the parties on the partition method is not binding on the court in principle,but exceptionally acknowledges the binding force of the discount partition.The court's discretion is not unrestricted.When dividing its judgment,it should fully respect the party's autonomy of will on the basis of fairness.And according to the type of specific disputes,construct a specific rule of judgment segmentation.