On The Identification Standard Of"One Thing"in NE BIS In Idem

Ne Bis in Idem is an ancient litigation principle,which originated from Roman law,was inherited by common law countries and civil law countries,and played an important role in the development of civil procedure.Although our country civil procedure related law has the stipulation to the NE BIS in Idem principle,but is not clear,also does not form a system,thus causes the judicial worker to the understanding on the NE BIS in Idem principle fuzzy,in particular,the identification of "one thing" in the NE BIS in Idem Standard,theoretical differences.This damages the unity of judicial adjudication and is not conducive to the establishment of judicial authority.Therefore,it is necessary for the courts to identify the " one thing " in the analysis of the problems,from which to sum up the experience,put forward in line with China's national conditions to improve the recommendations.This paper is composed of four parts:The first part is the analysis of the attribute of the Ne Bis in Idem principle.This part first introduces the historical origin and connotation of the principle of NE BIS in Idem,which originated from the theory of "consumption of the right of action" in Roman law,and has the double meanings of "belonging to litigation" and "res Judicata".Secondly,it introduces the relationship between the principle of NE BIS in Idem and the system of prohibiting repeated prosecution and the system of Res Judicata: The Concept of the principle of Ne Bis in Idem includes two aspects: the subordination of action and Res Judicata,the meaning of the Prohibition of double jeopardy is covered by the principle of NE BIS in Idem and viewed from a different perspective,while the concepts of res Judicata and the principle of NE BIS in Idem Intersect.The second part is the comparative analysis of the Identification Criteria of "one event" in NE BIS in Idem.First of all,it introduces the theory of the identification standard of "one event" in the principle of NE BIS in Idem in our country,which mainly includes the theory of "three tongs",the theory of "two tongs" and the theory of "one tongs","The same party","the same object of action","the same claim" as the three elements to identify the "matter" standards.Secondly,it introduces the standard of "one thing" in common law countries and civil law countries,in order to help China choose the theory of "one thing".For the identification of "the same party",the common law system adopts the "substantial control" standard,while the civil law system adopts the "same transaction" standard for the identification of "the same claim",the civil law system defines it by analyzing the identity of the cause ofaction,the object of action and so on.The third part is the judicial practice for the "matter" of the status quo and the existence of problems.First of all,the author analyzed and collated 473 rulings of the People's Court and the Supreme Court of Shanxi Province from 2015 to 2019,and selected 16 typical cases from them,from "the same party","the same object of Action","the same claim" three aspects of judicial practice to identify "a matter" of the status quo.Secondly,the author summarizes the problems in practice.As for the determination of "the same party",the problems that arise are that the legal provisions are not systematic,and there are different opinions on whether the third party of the former action is determined to be the same party;The problem in practice is that the current theory of the subject matter of the action in China can not solve the problem of concurrence of claims.In addition,the author finds from the judgment that the judge regards the facts stated by the plaintiff as an auxiliary identifying element,first,there is the question of the reasonableness of part of the claim,the decision has a positive or negative opinion,and second,the case of the pre-appeal for the decision,the court can apply the principle of NE BIS IN IDEM is controversial.The fourth part is the improvement assumption of the judgment standard of "one event".The author separately from the law,the judge,the retrial system three aspects puts forward the reconstruction proposal.Firstly,the position of the principle of NE BIS IN IDEM should be established by legislation,and the specific criteria for identifying "a matter" should be specified,and the role of guiding cases should be paid attention to.Secondly,judges should take the initiative to examine "a matter",in addition,the professional quality of judges should be improved to ensure the correct application of the Ne Bis in idem principle;finally,in view of the fact that the retrial system is a breakthrough in the NE BIS in Idem principle,therefore,the starting of the retrial procedure should be restricted from three aspects: the retrial idea,the retrial cause and the responsibility of the parties.