| In civil litigation,around the relationship between judicial power and litigation right,the litigation mode is divided into two basic types: the authoritarianism model and the party doctrine model,of which the latter is the basic trend of civil litigation legislation in various countries.The party doctrine model contains the basic litigation concepts such as the principle of punishment and the principle of procedural justice,and emphasizes that the right of action is restricted by the judicial power.The litigant’s claim defines the scope and object of the court’s trial,and the court shall not make a judgment beyond the litigant’s request,otherwise it will violate the principle of punishment.This point is explicitly stipulated in the civil litigation legislation of the main countries and regions of the continental law system.In our country,the judgment beyond the claim belongs to one of the civil retrial reasons,which is stipulated in item 11 of Article 200 of the Civil procedure Law,but this matter has not been paid much attention in theory and practice.On the one hand,there is a lack of detailed and in-depth research on the basic issues such as the concept connotation and identification standard of "beyond the claim judgment" in theory,and there are no detailed provisions with operational guidance in the legislative and judicial interpretation;on the other hand,in judicial practice,it is not uncommon for the court to exceed the judgment of the litigation request,and there is often a dispute over whether it belongs to the judgment of the overclaim,that is,it is unable to correctly identify the judgment of the claim beyond the claim.Theory and legislation are the bright lights to guide judicial practice,and theoretical research should often be carried out before legislation.Therefore,this paper starts with the difficulties occurred in practice and is guided by solving practical problems.In theory,this paper intends to make a systematic study on the civil litigation adjudication phenomenon of "beyond the judgment of litigation request" around its connotation definition,nature,identification standard,cause of formation and regulation path and so on.The first part is beyond the definition of litigation claim judgment.Before discussing the causes and regulation of the judgment of beyond the claim of action,we should start with the legal requirements of the doctrine of disposition and the doctrine of debate,which are generally pursued in modern civil litigation,and analyze the connotation and nature of the judgment of claim beyond.It is clear that the judgment beyond the claim not only includes theexcess judgment,but also should include the judgment of changing the subject matter of the action.Secondly,beyond the litigation request judgment has the nature of surprise judgment and defective judgment,not of course invalid.The second part is the empirical analysis beyond the judgment of litigation claim.First of all,this part summarizes and integrates the relevant provisions of China’s current legislation,and there are no clear legal provisions prohibiting the court from exceeding the litigation request judgment at the level of the actual law,but after systematic interpretation and legislative purpose interpretation,this should-be conclusion can be drawn indirectly,which is in line with the background of the reform of the trial mode of civil litigation and is in line with the amendment of the corresponding laws and regulations.In addition,there is still controversy in the academic circles for the legislative example of taking the judgment of beyond the litigation request as the cause of retrial in our country;secondly,by collecting and sorting out the judgment documents,it is found that the phenomenon of exceeding the judgment of litigation request is common in judicial practice.and show two main types.Finally,it is concluded that there are three main causes beyond the judgment of litigation claims.The difference in the grasp of the object of action leads to the lack of a unified standard for the identification beyond the judgment of the claim;for the problems related to the nature of the substantive legal relationship or the effectiveness of the legal act in the action,if the party’s claim is inconsistent with the result determined by the court according to its functions and powers according to the facts of the case,how to explain and to what extent the court lacks specific legislative guidance is also the reason for the emergence of the judgment beyond the claim.Due to the influence of the civil litigation system of the former Soviet Union,the civil litigation legislation of our country pays too much attention to the intervention of functions and powers,which makes the parties’ litigation claims lack of restraint to the court trial.The third part is the extraterritorial experience of regulating beyond the judgment of litigation claims.This part examines the mature legislative experience of regulating beyond the litigation claim judgment in the Anglo-American law system and the continental law system respectively,as one of the basic references for designing the standardized path beyond the litigation claim judgment in the judicature of our country.As the definition and grasp of the object of action in the Anglo-American law system follows a completely different train of thought from that of the continental law system,and our country also belongs to the legalmodel of the continental law system,it focuses on the experience and practices of the civil law system countries.mainly to strengthen the binding role of litigation claims and the improvement of the interpretation system.The fourth part is the regulation path beyond the judgment of litigation claim in our country.This part first discusses the necessity of regulating beyond the judgment of litigation claims.Beyond the litigation request judgment has not been widely concerned by legislation,practice and theory.However,the phenomenon of exceeding the judgment of litigation request still exists objectively in judicial practice,and its harm lies not only in harming the legitimate rights and interests of the parties,but also in reducing the predictability of court decisions,which is contrary to the values such as fairness and justice in civil litigation.in the end,it will damage the authority and credibility of the judiciary.Therefore,it is necessary to regulate the court’s decision beyond the claim.The most fundamental way of regulation is to perfect and amend the provisions of legislation and relevant judicial interpretation,strengthen the restriction of litigation claim on the trial scope of the court,draw lessons from the relevant mature legislative experience abroad,and issue prohibitive provisions beyond the judgment of litigation request.clearly enumerate the situation that can break through the litigant request for trial;In the identification beyond the judgment of litigation claim,the scientific application of the theory of litigation object is the most important,although the mainstream view of our country adopts the traditional theory of litigation object,however,on the basic theoretical propositions such as the concretization of identification standards and the distinction between the concept of litigation object and litigation claim,it is necessary to further strengthen academic dialogue and reach a more clear and broad consensus.Referring to the experience of foreign legislation,based on our own national conditions,reasonably standardizing the interpretation obligation of the court is also the key to prevent the court from exceeding the judgment of the litigation request from the source. |
