Research On Adjudication Rules For Partial Claim Of A Law Suit

Partial claim of a law suit refers to the claim that has the sepsis in quantity,the litigant first put forward the claim of some of the claims,and then make a claim for the remaining part of the claim by re-litigation.At the heart of partial claim of a law suit question is the permissibility of the residual claim,whether the plaintiff should be allowed to file the residual claim.There are a large number of partial claim of a law suit cases in our trial practice,the judges have different standards of judging partial claim of a law suit,and the handling of residual claim is also different,and there is no uniform rules of adjudication.This is due to the lack of necessary legal and judicial interpretation in practice,and on the other hand because there is a lot of controversy over partial claim of a law suit in theory.To solve this problem,we need to make clear the connotation of partial claim of a law suit,to transform the concept of "claim" in the traditional definition into the corresponding concept of procedural law,that is,the subject matter of litigation,and use the old substantive law to interpret the subject matter of litigation as a substantive claim,in order to eliminate the deviation of understanding.Second,we need to use the tool of claim right of substantive law to exclude cases that seem to be partial claim of a law suit but are actually multiple independent suits.For such cases,the court should not adopt a method of compulsory merger trial,and during the trial the plaintiff should be told to sue separately.Third,in the case of residual claim,the court should generally ruling inadmissible or dismissed by applying the term of prohibition against repeated prosecutions.Finally,the prior suit also has some influence on the residual claim,and the plaintiff may file a residual claim if the prior suit meets the three conditions of "explanation is partial claim of a law suit","justified" and "first claim to win the case".In addition,in the prior suit,the court should strengthen the interpretation and guidance of the original defendant by hearing the question of why the plaintiff claims only part of the claim as the focus.At the same time,the court should relax the plaintiffs claim for the increase or change of the claim.And the court should pay attention to the proper handling of the extended question for partial claim of a law suit,such as the interruption of limitation of action,the demurrer of offset,level jurisdiction and litigation costs.Specifically,limitation interruption of partial claim of a law suit includes residual claim,the defendant's claim for set-off claims shall be deducted from the part of the claims claimed by the plaintiff,and the court may exercise the right of interpretation in the prior suit to prevent the plaintiff from circumventing the level of jurisdiction to file a residual claim,our country can improve the system of judicial assistance and the introduction of litigation insurance system to reduce partial claim of a law suit caused by the lack of litigation costs.