| After the promulgation of the Supreme People’s Court’s Interpretation on the Application of the "> of the Civil Procedure Law of the People’s Republic of China" in 2015,China began to have explicit provisions on repeated prosecution in the field of judicial interpretation,but the provisions are still too general,and there are some problems in the application of the single provisions,which are lack of operability.At present,the relevant regulations of repeated prosecution in China include the exceptions for repeated prosecution,how to deal with repeated prosecution and non-repeated prosecution.Through the judicial practice of the people’s courts at all levels,especially the Supreme People’s Court of some typical cases,we can see that although the official three requirements standard has been widely applied,but there are still a variety of other ways to judge whether it is a repeated prosecution.Through the data,we can find that the application degree of the official three elements in the identification process has been greatly improved compared with the identification before the implementation of article 247 of the civil lawsuit interpretation.As for the problem that some judges adopt other standards when identifying whether it belongs to repeated prosecution,the author thinks that one of the reasons for this situation is that the understanding of the three requirements is different at present and the same standard is adopted no matter what stage and scope the pre-prosecution is in.We can draw lessons from and learn about other countries and regions of repeated prosecution theory and related systems,such as using "" legal action theory instead of " in the process of litigation," made by regulating the time range includes not only the proceedings of a case,also includes the case of legal effect,expand its coverage,and based on the clear legislative system reform’s start time is suitable for our country’s legal action;It also analyzes the appropriateness of the application of the three elements in China from the Angle of the theory of "expansion of the objective scope of repetitively judgmental force" and the theory of "contention for point effect".Can be seen from the current system of regulation and judicial practice,the field of civil action of repeated prosecution also have some problems in the recognition phase,in the identification of the three elements of point of view,for the identification of the parties to the same lack of flexibility,in the same lawsuit targets recognition deviation on the understanding and for the claims v.v.the judges before substantial negative results after the same or different understanding on there are some defects,and in the former stage and referees are still legal action take effect after the stage all use the same identification standard is not conducive to repeat to prosecute the solution of the problem.On this basis,we should further clarify the standard of the same party,from the more common common parties,litigation successors and litigation undertakers to make classification analysis;Combined with the types of action to reduce the identification of the same object of action from three perspectives of payment action,formation action and confirmation action to avoid the requirements in the case of applying different theories;In the claims are the same,especially the part of the same level of advice in the different stage of litigation with different elastic identification standard,under the legal action,we can adopt more stringent standards require litigants,and in the former litigation referee took effect when it can explain three elements to narrow way to better resolve the dispute;Behind a lawsuit filed for a lawsuit before there is negative outcome of this issue,according to a multitude of judicial precedent summarizes several judicial practice common negative type and combined with some theoretical point of view,in the infringement lawsuit and default proceeding of repeated prosecution decision should be considering whether infringement party’s legitimate rights and interests protected by fully,for after a lawsuit claims directly or indirectly negative before a verdict lawsuit running this kind of situation was classified according to different types of discussion. |
