On The Time Limit Of Res Judicata Of Civil Litigation

Triggered by the second guiding case of Supreme Court that settlement effectives judgment effectiveness,we can see that time limit of res judicata is implemented through subject matter of litigation,the method of attack and defense,the right to prove,objective limit of res judicata,retrial,execution,etc..However,the existing theories and system in our country present the state of fuzzy or unconscious and the lack of systematic explanation.And the practice has driven the demand on the theory of preclusion,there is an imbalance between supply and demand.This paper is in light of the following three clues.First,from the angle of change sequence of the private rights,this article restores the own logic of time limits of res judicata in accordance with the definition,nature,significance,meaning of entity and procedure;Second,this article integrates the theory status in the civil litigation of preclusion based on the line of reasoning,including the loss of the right of defense,the theory of case fact,the exercise of right of formation after standard time,reconciliation before the execution,civil procuratorial mediation effect theory;Third,this article takes the focus on the points as well as that in the past may not be aware of starting from the angle of time limit,including the division causes,the distinction between civil and administrative litigation,broad and narrow preclusion,segmentation of res judicata and execution,standard time shortened or extended,two kinds of specifications of new evidence,the abolition of the cause of action etc..And the external textual sequence is along the traditional textbook from the concept,case,reflection,inspiration layer by layer.In addition to the introduction,the text is divided into five parts.The first part is the analysis of the basic problems from the three dimensions.One is the field of time limit of res judicata,which belongs the limit of res judicata and should be placed in the range and combined with debtor dissidence law.Two is the causes of the division standard,including the current legal basis of the debtor dissidence law and the end of the debate;it can reflect changes of private rights to the trial process to resolve the dispute more thoroughly;the civil target of solving the current disputes.Three is to further analysis time limit,which is not simply to provide litigation information from cut-off point in time;and the standard time of civil litigation is different from administrative litigation;and there are two matching principle.The second part is on the most important effect of time limit from the view of concepts,properties,mechanism of action.Preclusion has two means,the former refers that the parties cannot do the opposite claim and dispute on the point of contention which is judged,and it can be included into the same theory--preclusion theory;the latter is time limit of res judicata.In nature,res judicata itself contains the preclusion,which is a tool of the effect of res judicata and the specific mechanism is not to consider the fact and evidence,including both the object and the way.The third part is on traditional project of the time limit from the new angle and puts forward a new theory.This paper frames the traditional topics as when to exercise the right of formation based on the distinguish between the legal action and acts in action and the stage of the right of formation.Taking the new point of view that current research results can be summarized as three different ways of thinking,including German’s concept of law,Japanese meticulous results and American interests thinking;the two substantive consideration,including the demand of procedural law that the disputes should be resolved in a timely manner,the parties should be equal;and the demand of stantive law that the parties be entitled to be free of the exercise of rights.As the specific conclusions,this article describes the different way according to the different statues of the right.This article puts forward a new theory based on the evaluation of different mechanism of res judicata and execution force.As a basic level,judgment-and-execution separation leads to res judicata and execution,and can be used as the rationale of debtor dissidence law.In practice,settlement has properties of determined effect,and the segmentation that constructs two classes of progressive processing logic can solve the problem of execution reconciliation before the civil and procuratorial mediation effect.On the contrary,the second guiding case highlights its departure according to the reasoning structure and the essence of the back considerations,which adopts a "limited parallel relationship" theory.As a political thinking,it has a strong nation principle,efficiency priority tendency and is not conducive to the integrity.Based on this,but also to review of existing recovery execution system.The fourth part reflects on the set point of standard time itself and related institutional interaction.This article holds that the existence of possible of advancement and delayed standard time,the former includes invalidity of evidence;the court judges in accordance with the original litigation,if it does not consider the original legal relationship has been transferred,in informed or uninformed circumstances.The latter includes:it will substantially extend the standard time in alimony claims and litigation of payment in the future,because it concerns the future claim.The system interaction caused by standard time includes:according to that preclusion greater than the strength of the evidence disqualification and special civil procedure structure of continental law system,it should have a wide certification of the loss of rights;the logic range of retrial and res judicata is that the new evidence for retrial requests the general negligence and preclusion requests of no-fault;there also has two kinds of specifications for the new evidence,but our country can adopt a unified system of retrial and should not relax the preclusion,because of the shortened retrial application deadline;China’s unique appeal elements which contain a cause of action is equivalent to the reduction of preclusion,which lies in the lack of procedural guarantee and the pursuit of substantive justice.lt also highlights a lack of litigation theory that we need pay more attention on preclusion for it links methods.The fifth part pointes out the revelation of time limits and the recommendations of the construction of system.Based on the history,theory,practice,motivation,this article pointes out that China’s existing state of time limit is fuzzy,but the actual provisions also contains the theory.Then at the theoretical level,this article points out that this theory is embedded in the entire theory building of the civil litigation,we can not care for this and lose that in dealing with the problem,we should promote the use of dogmatics of law,pay attention to the overall and scientific exposition in system design;in the level of specific examples,describe the conversion of the concept and technique.