The Research On The Changing Of Claim Involved In The Retrial

As a micro-proposition,the theory of changing the claim in re-trial procedure is subordinated to the changing of claim.The basic concept of the changing of claim is that the plaintiff replaces the original claim with a new claim,rather than change the current litigation procedure.The purpose of this procedure is to economize more resource of judicatory and reduce the litigation burden of the parties.It also establishes a new dispute resolution system and improves the efficiency of the litigation procedure.However,in some cases,the changing of the claim actually involves the change of the object of action in litigation which would have a significant impact on procedural rights and substantive rights of both parties.Therefore,the change of the claim should set limit based on the interests of all parties.Furthermore,the change of claim is always seen as a plaintiff's litigation owing to the relevant provisions in China's Civil Procedure Law.It does not specify its specific scope and fails to set any conditions on the change of claim in civil procedure.In addition,the relevant judicial interpretations are not systematic.It could be more controversial in the retrial case,especially involving the object of litigation.In 2015,the Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China added article 251 and article 252 respectively for the change of claim in retrial.Although the article 251 quotes the provisions about first instance procedure,its scope of application is still vague.Article 252 provides four occasions for the parties changing the claim in retrial case,which involving changes in the situation and prohibition of repeated prosecution remains to be explored.Therefore,in order to specify the change of claim for the parties in retrial case,this paper will take the basic framework of the change of claim as an approach,and analyze the procedural essence of the retrial system.This article fails into four parts,totaling 35,000 words.The first part is concerned with this issue.This part focuses on the specific issues involving changing the claim in retrial case.First,since there is an unbalance between re-send and retrial in China's legislative and theoretical circles,the main disputes of the change of claim in the retrial procedure should be clarified.Second,this paper would analyze the mechanism of current legislation and judicial interpretations in China,standing on the brief discussion of article 251 and article 252.The second part would summarize the change in claim.Whereas the unclear classification between litigation and object of action divide China's legislation and academic circles,this part would illustrate the basic concepts of claim with accuracy.It also discusses the procedural value and policy involved in the changing of claim in retrial case.Second,this paper would propose the new types of changing of claim,referring the theories of “complaint change” in the civil law countries.The third part demonstrates the value orientation and restrictive mechanism of the change of claim in the retrial.With the general discussion on the basic theories and types of claim changes,this part would trace the specific setting for retrial and balance the basic policy values in the claim change according to the independence of the re-trial system.It concludes that the intervention of judicature in the retrial procedure is a reasonable restriction of the parties.The fourth part analyzes the feasible approaches of changing claim in the retrial case.Considering the second-instance's re-review as the starting point of the discussion,the discretion of the parties should be limited by the boundary that builds on the overall framework of the appeal procedure for the stability of the procedure and the efficiency of litigation.Relief value is used as a basis for the enforcement of the disciplinary power of the parties;retrial and retrial cases.The changes of claim in retrial case should base on the Interpretation of Article 252 prescribed Civil Procedure Law.Thus,the interpretation of how to apply relevant laws refers to the principle of change of circumstances and the principle of prohibition of repetitive litigation as well.