The Theory Of The Identification Of Particular Succeeding In Civil Litigation In China

When the relationship of related rights and obligations in civil litigation is transferred,the procedural law should make a progressive procedural design in two levels:whether the litigation is ongoing and whether the assignee is a particular successor to the res judicata is the division of the first level.In accordance with the specific criteria for the identification of the successor,and then in the determination of the eligible parties is the choice of privy forever principle or suit acceding principle is the second level of division.However,in terms of rule making,China has long ignored the construction of the first level,and there is no law to stipulate the specific recognition standard of the identification of particular successors in litigation,only the judicial interpretation of the civil procedure law simply stipulates it as "the transfer of the disputed civil rights and obligations".This rule has the defects of unclear connotation and limited extension,and obvious legal loopholes.Led to in the judicial practice,the judicial referee often skip certain after the identification of a link.Either rigid in the legal norms within the scope of understanding and application,failing to include difficult,vague typical cases into the norms should be included in the scope.Either it is oriented by the application result,and excessively tends to the dimension of program value,which blurs the premise and foundation of specific recognition.In addition,it is precisely because of the defects in the rule making that the transfer of non-disputed property rights in the litigation involving right of claim in rem has been in the gray area of academic discussion for a long time,the relevant types cannot be properly dealt with,and the interaction between substantive law and procedural law is either stagnant,separated,or radical and unbalanced.This article will take the civil procedure in the specific afterwards receives the recognition the consideration factor as the starting point,revolves around this system value pursue and the suitable effect launches.The hypothetical demonstration of the prepositional institutional purpose and the applicable results will set a reasonable boundary for the identification of particular successors.On the basis of studying the judicial judgment,the typological analysis of the long-neglected and obvious error transfer will be beneficial to the dynamic application of the specific subsequent recognition theory tools.In consideration and balance,we should realize the specific value pursuit and the positive interaction between substantive law and procedural law.In addition,the study and conclusion of group cases and similar cases in judicial practice will provide important reference and test materials for the improvement of rules,deepen the reflection on the deficiencies of the current situation of China’s recognition.Finally,on the premise of giving consideration to both substantive justice and procedural justice,this paper will draw an effective conclusion to improve the specific subsequent recognition rules in civil litigation.Article 249 of the judicial interpretation of the civil procedure law should be amended to "the relationship of civil rights and obligations related to the object of action and the transfer of the subject matter in dispute".When the claim is based on property rights,the situation in which the owner transfers his jus in re aliena and the things related to the property rights in dispute(including the subject matter of the lawsuit and the things related to the subject matter of the lawsuit)are included in the specific scope of particular succession.In addition,the existing debt bearing and the transferee’s ignorance of the transfer of the lawsuit are amended to exclude them from the scope of specific successors:The situation of partial assignment of creditor’s rights is similar to that of the whole assignment of rights and obligations,which could only choose the privy forever principle.In order to correct the mistake of mixing the object of action with the specific successor in judicial adjudication,the relevant rules should accurately distinguish these two concepts when they are modified--both are legal categories related to the content of substantive law and procedural law,but the difference is greater than the relevance.