The Theoretical Choice And Localization Path Of Partial Claims

At present,partial claim has appeared in judicial practice in our country.A reasonable attitude towards the type of litigation should first adhere to the value of fairness and justice,and then pursue one-off settlement of disputes.Since the partial claim is unified with the basic theory of civil litigation and the parties have objective reasons for having to file a partial claim,the filing of a partial claim shall be permitted.In order to balance the interests of the plaintiff and the defendant,and try to realize the economic principles of litigation,it is advisable to learn the Japanese eclectic theory for specific regulation,that is,the plaintiff can only file a subsequent suit if he clearly states that he files a partial claim and a successful judgment is obtained.The academic circles have focused on one aspect of the partial claim,and lacked a comprehensive and systematic analysis of the partial claim.This paper will systematically discuss the procedural law issues involved in the partial claim,and supplemented by the substantive law research on the claim rights,divided into the following five parts:The first part is the connotation and extension of the partial claim.By enumerating the different types of cases in practice,it is clear what the claim rights refer to and under what circumstances the split of the claim rights can be called a partial claim,and finally the concept of the partial claim is clear.Next,this paper will compare and analyze some of the situations that are easily confused with it,such as increasing the litigation claims and subsequent damages,in order to have a clearer understanding of the connotation and boundaries of the partial claim and limit the research object of this paper.The second part is the basic theory of the partial claim.Under the guidance of the value concept of the partial claim,combined with the objectives of civil litigation,this paper believes that one-off settlement of disputes can only be pursued under the premise of upholding fairness and justice and respecting the parties' rights of disposition.The key to whether the partial claim constitutes repeated litigation and violates the theory of the objective scope of res judicator is the understanding of the lawsuit object and the litigation claim.This paper believes that the difference betweenthe litigation claim and the lawsuit object should be distinguished and res judicator of the procedural judgment is limited to the main text of the judgment in order to seek a reasonable theoretical basis for allowing some of the partial claims.The third part is the related research and analysis of the partial claim from foreign countries and relevant regions.First,this paper will introduce the related research of the partial claim in foreign countries and related regions,detailing the related research of Germany,Japan,and Taiwan in China,and briefly introducing the relevant systems of the United States.Germany and Japan,which belong to the Civil Law System,generally have three theories: Comprehensive Affirmation,Comprehensive Negation and Eclecticism.The eclectic theory is favored by the German and Japanese.In comparison,Japan has more restrictive conditions for the partial claim than Germany.The United States,as one of the countries in Common Law System,in principle prohibits the partial claim.Even if the parties divide the claim and prosecute,if the judge finds that there are still some residual claims in the trial of the case,he will judge all possible claims,except the situation that the parties have made a private contract on the partial claim.At the end of this part,this paper will briefly analyze the theories of the partial claim in foreign countries and related regions,in order to draw lessons that can be used for reference in our country.The fourth part is the legitimacy of the partial claim.This part mainly analyzes the specific reasons and rationality of the affirmative scholars in China,and expounds and refutes the reasons for the negative scholars.Then sum up the affirmative theory and the negative theory,draw on the feasibility of the affirmative scholars' views,respond to the negative scholars' concerns,in order to provide ideas for the fifth part of the specific regulatory approach.The fifth part is the localization path of the partial claim.Based on the research of the aforementioned part,in order to balance the interests of the plaintiff,the defendant and the court and ensure the full play of their respective functions,the author will make specific regulatory approach for the localization of the partial claim from the substantive and procedural aspects.