On The Regulation Of Repeated Prosecution

The Article 247 of the 2015 Judicial Interpretation of Civil Procedure Law clarifies the constituent elements of repeated prosecution,this makes judicial practice more operative to identify cases of repeated prosecutions,but both theoretical and judicial practice raises questions about the provisions of Article 247.Taking Article 247 as the core,this paper uses theoretical analysis and empirical analysis methods to explore the inherent laws and practical operations of repeated prosecution regulations,and attempts to put forward feasible suggestions for practical problems.The first part of the article summarizes the system of repeated prosecution:repeated prosecution refers to the prosecution in the process of litigation or after the judgment is determined,the same party is targeting the same litigation,and the claim is the same as the prosecution or the purpose of negating the outcome of the prosecution after the court filed a lawsuit,the latter complaint will be rejected by the court because it is illegal.In the context of civil litigation in China,repeated prosecutions exist after the litigation system and the judgment takes effect.The theoretical basis for prohibiting repeated prosecution is to promote the litigation economy,to prevent the accused from falling into the lawsuit,to prevent contradictory judgments and the principle of good faith.In the second part of the article,from the theoretical level,the three components of the repeated prosecution stipulated in Article 247 are analyzed one by one:in the same requirement of the parties,there are litigation,the same parties in the creditor's subrogation litigation,the transfer of civil rights and obligations and the succession of litigation.In the same element of the subject matter of litigation,the viewpoints and reasons adopted in the theoretical doctrines and judicial practice in China will be specifically discussed.In the requirements of the litigation request,the relationship between the subject matter of the litigation and the litigation request will be clarified firstly,and then the same as the litigation request and the subsequent appeal request are substantially negated.The third part of the article discusses the status quo of judicial application of China's repeated prosecution system:firstly,it shows the judicial application of the stipulation of the repeated prosecution of Article 247,and then the typical case related to the three components of the repeated prosecution stipulated in Article 247.Type analysis and analysis and explanation of the reasons for localization.In the judicial case in which the same element is identified,the former and the defendant's litigation status in the latter case are still the same as the parties;In the case of the creditor's case in the joint contractual dispute,if the creditor is in the prosecution that only part of the responsible person is sued and the credito's rights are not fully realized,the other joint and several responsible persons may still sued the defendant for the remaining claims.In the judicial case that identifies the same subject matter of the litigation,it will be divided into two parts:the litigation process and the post-validation.The judicial determination of the subject matter of the litigation after the referee takes effect will be divided into two types:the contradiction between the post-suit request and the pre-judgment result and the change of the subsequent lawsuit.Through the practical investigation of the same elements of the litigation subject,it is found that the judicial practice of our country basically adopts the "old saying" to identify the subject of litigation,but there are still exceptions.In the stage of litigation,in order to avoid contradictory judgments and realize litigation economy,the courts identify the litigation targets from the level of disputes.If the relevant negative effects are within the controllable range,the litigation targets can still be identified from the claimant level.After the referee takes effect,if the petition request conflicts with the outcome of the prosecution referee,the court will identify the litigation target from the level of the dispute to expand the scope of the repeated prosecution;If the legal reason for the subsequent appeal changes,the court will identify the litigation target from the claimant level for effectively protecting the legitimate rights and interests of the parties.In the judicial case in which the same requirement for litigation is identified,the litigation in the form of partial request is controversial,but from the perspective of respecting the disposition of the parties and effectively safeguarding the legitimate rights and interests of the plaintiff,this article holds a positive opinion.When the petition request for the appeal is not inconsistent with the result of the referee that is effective before the appeal,and the reason for the judgment of the former appeal is excluded,there is a corresponding judicial case applicable to the case that the claim of the later appeal substantially denies the result of the preliminary appeal.It is necessary to identify the post-suit to constitute a repeated prosecution,and then consider that the reason for the judgment has the same res judicata.The fourth part of the article is based on the situation of practical investigation,and puts forward relevant suggestions for the improvement of repeated prosecution regulations:First,strengthen the court's interpretation obligations,enrich the court trial process,and enable the parties to fully attack and defend against relevant disputes;Second,explicitly enforce the scope of counterclaims in China is to introduce a compulsory counterclaim system reasonably,prevent contradictory referees,and promote one-off resolution of disputes;Third,strengthen the integrity of litigation,guide parties to litigation,and reduce the number of malicious repeated prosecutions.