The Discussion On The Perfection Of The System Of Advance Judgment

The provision of advance judgment is the only legal basis in Article 153 of the Civil Procedure Law of China.In theory,the research is still insufficient,basically staying at the level of concept comparison and brief introduction of foreign legislation.On the contrary,the system has gradually been valued and favored by judges in judicial practice,and relevant cases have gradually increased.There is an irreconcilable contradiction between the lack and delay of theoretical preparation and the growing practice.Therefore,it must be improved on the premise of in-depth theoretical research,on this basis,selection and absorption into legislation.In the research process,on the one hand,we can learn from foreign mature experience and practice,on the other hand,we can summarize the relevant cases and summarize the common practice and relatively consistent handling rules in judicial practice in China,which are the two main lines of research.Therefore,this paper is mainly based on the comparative law research and the empirical perspective of the case analysis.The purpose is to build the specific application rules of the advance judgment system,and improve the advance judgment system.The article is mainly composed of four parts:The first part is an overview of the advance judgment.First of all,the concept of advance judgment is clarified,whether it is made for the fact or for the request.On this basis,it is compared with some judgment systems outside the country to see whether they belong to the same thing or not,which lays the foundation for the follow-up investigation of comparative law after reaching a positive conclusion.Secondly,it is compared with similar concepts,and its connotation is more deeply understood At last,it analyzes its function value and significance of existence.The second part is a comparative study.From the countries(regions)of the civil law system and the common law system,the relevant legislation is investigated,and the mature procedural rules are summarized as the nutrient of theoretical research.Among them,the countries(regions)of civil law system mainly investigate Germany,France,Japan and Taiwan.The common law system mainly studies the legislation of Britain and the United States.The third part is to analyze the current situation of our country's advance judgment system,mainly the operation of judicial practice.It includes the overview of the overall situation and the analysis of typical cases.The fourth part is the concrete suggestions to improve the advance judgment.In the legislative design,we mainly consider the object of judgment,the elements of constitution,the scope of application,the objective scope of res judicata,the way of dealing with the remaining parts and the way of relief.