The Construction Of The System Of The Trial Of Litigation Elements In China

The litigation elements refer to the legal requirement of litigation.If it is not met,the judgment will be illegal.In terms of theoretical research,the relevant theories of litigation elements have been discussed earlier in civil law countries and have begun to take shape.However,due to the short-time research in China,it is still inadequate to understand them.On the one hand,the provisions on the elements of litigation are scattered and confused in Civil Procedure Law of the People’s Republic of China without any relevant rule and method at the trial.On the other hand,a case lacking of litigation elements cannot enter the formal trial process,and the relief approach is also imperfect.Based upon the status quo,the major problem of litigation elements in China’s legal practice is the confusion in filling lawsuits.Reflecting the unclear basic connotation of litigation elements and inappropriate stage and method of the trial,the main reason is that it is vague whether the litigation requirement is the elements of the legal requirement of a case or not.After clarifying the natures,the litigation elements will be subsequently reviewed,and further bring the discussion on the proceedings of the litigation elements.For example,the litigation elements are examined according to the judge or the parties’ applying;whether the evidential materials of the litigation elements are limited to the scope submitted by the parties,and whether the judge can collect them outside the scope by himself,so they can judge the litigation elements are available or not.If different examination and investigation methods are used for different litigation elements,how should people classify them? According to which criteria? In the course of the trial,if the judge thinks that all the litigation elements in the case have been met,is it necessary to make a ruling directly? If the parties have objections after the ruling is made,should they appeal immediately or wait until the judgement is made? How should people deal with the change of litigation elements found in the second instance? These problems brought by the subsequent examination of the litigation elements are closely related to the position and nature of them.In the process of hearing them,the judges cannot ignore the importance of the litigation elements to the legitimacy of the judgment,to ensure the fairness of the procedure.The first chapter of this article combed the status quo of the litigation elements and proposed specific problems.In legislation,the litigation requirements and prosecution conditions are mixed,with unclear subject matter of the litigation and suspended subsequent trial issues.In the legal practice,judges also pay more attention to the examination of entity requirements,and there is no consistent standard for the trial process.The second chapter illustrates the meaning of the litigation elements.Through the overall overview of the basic concepts of the litigation elements,it is clearly positioned in the civil procedure law and combed the specific matters and classification of litigation elements.The nature of litigation elements should adopt the theory of “legal elements of litigation” and be separated from the establishment requirement.When constructing the system,it is advisable to remove the content of the establishment requirement from the existing litigation elements,which should be examined in the substantive trial stage,and retain the litigation elements which only need formal examination in the prosecution stage.With the change of the litigation right theory,the litigation right’s influence on the litigation elements theory is weakened,which is mainly reflected in the party’s eligibility and the interests of the litigation.At the same time,there are differences in the concept between the elements of litigation and the elements of the case.In China,the elements of litigation can be divided into the litigation elements about the court,the litigation elements about the parties and the litigation elements about the objects of litigation.Specifically,it includes the court’s supervisor and jurisdictional requirements,the actual existence of the parties,the capacity of the parties,the ability of litigation,the legal agent of agency authority,the eligibility of the parties,the interests of litigation,the prohibition of repeated prosecution or the existence of a binding judgment,and no effective arbitration agreement between the parties.The third chapter focuses on the examination of the litigation elements,including the examination of the litigation elements,investigation,trial order and the way of trial.On the level of litigation data,because general litigation elements based on the stronger public welfare,judges can review the existence of litigation elements with their authority,and special litigation elements enters the litigation according to the application of the parties;At the level of evidentiary materials,when the evidentiary materials provided by the parties are not enough to prove whether the litigation elements are lacking,the question whether the judge can take the initiative to investigate involves the classification of the litigation elements.According to the strength of public welfare,litigation elements can be divided into two categories,the strong public welfare litigation elements according to the authority investigation.Otherwise,the judge cannot take the initiative to investigate;In terms of the trial order,the litigation elements are theoretically the prerequisite elements of the judgment of a case.In principle,the overall trial order takes precedence over the elements of a specific case,but there is no need to make strict demarcation.It is more in line with the practice to deal with them flexibly according to the convenience of the trial.Affirming the res judicata of litigation judgment.The method of suspending the litigation process and waiting for the litigation elements to appeal is not adopted.On the contrary,after the judgment of the case,the parties who have doubts about the litigation elements can bring them up in the second instance.The fourth chapter puts forward suggestions on the specific suggestions on the construction of the trial system of litigation elements in China.In the legal norms,the litigation elements should be removed from the establishment requirements,to adapt to the pace of judicial practice in China.According to the standards of the strength of public welfare and the degree of difficulty in judging,the litigation elements that can be temporarily retained include the court director,the actual existence of the parties,the capacity of the parties,the litigation ability,and the jurisdiction by level.This is only a smooth transition in the method,the ultimate goal is to post the goal of litigation requirements completely.After the transition is completed,the court should review the litigation elements in accordance with the corresponding way,according to the application of the parties of the judge cannot intervene,according to the parties of the judge cannot focus on the investigation.When the requirement of litigation is lacking,the lawsuit is still rejected by the adjudication in China,which conforms to the custom and rule of adjudication in China.The litigants have the right to appeal against the ruling.Therefore,if the second instance finds out that there is a change in the existing conditions of the litigation elements,the court can make a judgment to reject the lawsuit petition or send back for retrial.