Research On The Identification Of Civil Of Repeated Prosecution

The main body of this paper firstly analyzes the necessity and rationality of the system of prohibiting repeated prosecution in theory and practice,then reviews the current situation of its legislative embodiment and judicial application.By analyzing 42 judicial cases of repeated prosecution made by the Supreme People’s Court in 2022,it summarizes the problems in the legislative and judicial application of the system of prohibiting repeated prosecution.Then,in view of the summarized problems,the meaning and specific applicable methods of the four identification standards of repeated prosecution are clarified one by one.Finally,by clarifying the meaning and judgment methods of each specific identification standard,the improvement suggestions on the system of prohibiting repeated prosecution in China are summarized.Firstly,the necessity and rationality of the system of prohibiting repeated prosecution are studied theoretically.This paper mainly introduces the concept and value of the system of prohibition of repeated prosecution.By tracing the historical origin of the system of prohibition of repeated prosecution,it reviews its relationship with non bis in idem,res judicatorius and jurisdictional objection,analyzes its economic value of litigation,reducing the burden of being told,maintaining judicial authority and other values,and clearly defines the theoretical depth of prohibition of repeated prosecution.This part innovatively analyzes the relationship between prohibition of repeated prosecution and objection to jurisdiction.Objection to jurisdiction is a procedural issue,and prohibition of repeated prosecution has always been regarded as a procedural issue,but its specific identification criteria are often related to the substantive legal relationship.Therefore,the author believes that it is necessary to sort out the similarities and differences between the two so as to better understand the positioning of prohibition of repeated prosecution.Secondly,the current situation of the prohibition of repeated prosecution is sorted out from the legislative and judicial aspects.In legislation,the issue of repeated prosecution is not only stipulated in Article 247 of the Interpretation of the Law of Civil Procedure,but also related to the prohibition of repeated prosecution in other provisions of the Civil Procedure Law and judicial interpretation.For example,Article 127 of the Civil Procedure Law stipulates negative conditions for prosecution,Article 143 of the parties’ increasing claims,and Article 212 and 214 of the Interpretation of the Law of Civil Procedure stipulates repeated prosecution under special circumstances.In terms of judicature,this paper studies 42 judicial cases on the issue of repeated prosecution made by the Supreme People’s Court in 2022,and summarizes how courts deal with this issue in judicial application.Then through the analysis of the current situation of legislation and judicature,it concludes that there are some problems in the prohibition of repeated prosecution,such as the absence of the theory of litigation system and the theory of res judicata,the large space for the interpretation of legislative provisions,the insufficient judicial reasoning,and the unclear nature of procedure and substance.Furthermore,the definition and judgment methods of the three identification criteria of repeated prosecution are clarified one by one.The main reason why there are so many problems in the legislative and judicial application of the prohibition of repeated prosecution is that the identification standard is controversial,which is reflected in the existence of a variety of theories such as the general identification standard,the two theories,the three theories and the theory of factual reasons.In terms of the three theories,the relationship between the object of action and the claim is the same,the former contains the latter,the latter contains the former and so on.In essence,the key to solve this problem is to clarify the specific concept and judgment mode of each identification element.Therefore,the author analyzes the meaning of each recognition element one by one,makes clear its constituent elements,and analyzes several recognition methods under special circumstances.To sum up,the author thinks that the identification criteria of the three kinds of harmony theory has a certain rationality,advocates that on the basis of the three kinds of harmony theory,with the help of the level of legal relations to judge the object of action of different lawsuits,and believes that the necessity of independent existence of litigation claims.Finally,the paper summarizes the improvement suggestions on the identification and application of the prohibition of repeated prosecution.By combing the overall identification elements,the author summarizes the improvement suggestions of identification and application.In terms of identification requirements,we should generally adhere to the identification framework of "three similarities",make a broad understanding of "identical" and take the object of action as the core element.In the way of application,the case should be discussed and dealt with flexibly,and different ways should be applied according to different stages,and the power of interpretation of the judge should be strengthened,so as to solve the dispute at one time.