Research On Part-Lawsuit In Civil Procedure

The research on part-lawsuit originated in Germany,Japan and Taiwan of China,and the theoretical research on this issue has been quite fruitful.Typical partial requests have many examples in our country,but the theoretical circles have not paid enough attention to this problem.There are only a few articles on partial requests,but in practice,the treatment of partial requests cases is not uniform.Based on this,the author makes a comparative study of some claim theories and precedents in Germany,Japan and Taiwan.Combining with the current situation of theory and practice in China,the author makes a typological study of some claim cases that have emerged,and puts forward the theoretical basis and specific measures to regulate some claim in China.The most important contents are divided into four parts,the main contents are as follows:The first part is an overview of some requests.This part first elaborates the basic meaning of partial claim as a legal term and the reality of its existence,that is to say,the parties first make litigation requests for some of the quantitatively separable claims,and then make litigation requests for the remaining claims through re-litigation,which has its realistic basis in practice,so as to establish the cornerstone of the discussion.Secondly,it is precisely because of the different understanding of the basic theory of civil litigation that some claims will be dealt with differently.Therefore,this part hopes to have a clear understanding of some requests by analyzing the impact of the purpose of civil action,the right of action,the object of civil action and the theory of res judicata on some requests.The second part is part of the request for extraterritorial and regional visits.This part mainly classifies and discusses some claim theories in Germany,Japan and Taiwan.Through induction and analysis,it can be seen that the theories about partial requests can be roughly classified into three categories: partial requests for full affirmation,partial requests for full negation and partial requests for compromise.Due to the lack of theoretical research on partial requests in China,the introduction of this part can provide some theoretical references for dealing with partial requests in China.The third part is mainly about the justice situation in some requests in China.This section mainly through the analysis of the status quo of some requests in theory and practice in China,and combined with various types of partial requests in China,discusses the problems of partial requests in our research and practical processing.Especially,after the analysis of the different ways of handling the court,this part focuses on the distillation,classification and summary of the differences of different cases,and divides them into partial requests under typical litigation form and partial requests under special litigation form.In the typical litigation form,the partial claim refers to the plaintiff dividing the whole payment based on the same object of action and submitting his claim to the court separately.In addition to the partial claim cases under the typical litigation form,this part makes a typological analysis of the partial claim cases under the special litigation form,in which the main types of analysis are: joint and several debt cases,the main obligation to pay.The cases of subordinate obligation of payment,principal and subordinate debt and the cases of creditor's rights with partial guarantees.The fourth part is the system conception of partial requests in our country.Firstly,based on the analysis of the theories of partial requests,this part chooses the best explanatory scheme to standardize the theoretical basis of partial requests,and reviews the theoretical and practical basis of the selected scheme.Secondly,after determining the theoretical basis,this part puts forward specific measures to regulate part of the request,including plaintiff must express,have legitimate reasons,before and after the parties must be the same,after losing the lawsuit can not be repeated,the judge has the obligation to explain.Finally,because the disposal of some requests inevitably leads to the disposal of other problems in litigation,this part discusses the disposal of limitation and offset which are most often involved in some requests.