The Studies On Feststellungsinteresse

Civil litigation,as an equity mechanism involving rights and dispute resolutions,is based on the parties'need for judicial relief.Therefore,interest measurement should be considered when formulating legal norms of civil entities as well as resolving civil disputes with litigation procedures.The national litigation law of China has not made clear provisions on the Feststellungsinteresse(the interest of the confirmation suit).Compared with the research on the confirmed interest in Germany,Japan and other countries with civil law system,the research on the Feststellungsinteresse in China's theoretical circle is insufficient.From the perspective of the particularity of the action of confirmation,the screening function of the confirmation interest,the right of the confirmation interest and the generating function of the law norm,it is necessary to introduce the confirmation interest in our country.In judicial practice,courts in China have explored the application of confirming interests together with mature theories abroad,so it is feasible to introduce confirming interests into China.The court can examine the confirmation of interests in three steps:first,examine the appropriateness of the confirmed object,then examine the appropriateness of the confirmed action as a way to requeste protection,and finally examine the maturity of the confirmed dispute.In principle,only the current legal relationship can be confirmed when examining the confirmed objects,and only when the past legal relationship is conducive to the fundamental settlement of disputes,can the court recognize its Feststellungsinteresse on an exceptional basis.The parties concerned may request to confirm the legal relationship of others,but they should start from the effectiveness of dispute settlement and choose the legal relationship that is most conducive to dispute settlement when choosing the object of confirmation.Do not allow to undertake affirming to the fact in principle,but if this fact is the fundamental fact that forms legal concern,so according to the circumstance affirms the affirm interest that this sues.The effect of the legal act causing the change of rights and obligations should also be recognized as the confirmed interests of the confirmed object.A review of the appropriateness of claims for protection should focus on the appropriateness and effectiveness of affirmative action as a means of dispute resolution.Generally speaking,the plaintiff is not allowed to bring the action of confirmation when he can bring the action of payment.In the implementation stage,if the lawsuit of confirmation can better determine the ownership of rights and settle disputes,the lawsuit of confirmation can also be allowed when the lawsuit of objection can be filed.In the examination of the maturity of the dispute,we can examine whether the plaintiffs dispute has the necessity of immediate settlement from the aspect of the uneasiness or danger caused to the plaintiffs position and the reality of the uneasiness or danger.