An analysis of the Civil Procedure Law of the "non bis in idem"

"Non bis in idem" principle, is the decision, ruled that the defendant has taken legal effect of the case, shall not be prosecuted and tried again.
"The principle of non bis in idem" from Rome law "of consumption" theory. The ancient Romans will suit material, the material in the sense of movement will inevitably bring about the consumption of material, so they think that exercise the right of litigation will lead to right consumption. The so-called "right consumption", refers to all the action will be due to Litigation Department of consumption, on the same right of action or claim, does not allow the two litigation department. Here the Litigation Department is because the lawsuit, in particular between the parties, the legal relationship is disputed by a court in the jurisdiction of the state.
The theory of modern civil litigation is generally considered "non bis in idem" includes two meanings: one refers to the effect of litigation, namely a lawsuit has filed or litigation, the litigation shall not again. The same case against repeated prosecution, not limited to the same court case, the court to the other repeated prosecution also prohibited. The second refers to the negative effect of res judicata, namely to a lawsuit has made the final judgment, not to mention again or re trial.
A complete suit, can only support a complete procedure. "Application of the principle of non bis in idem", the key is to solve the judgment standard of repeated prosecution. And the most basic elements of proceedings for two: one is the party, another is the object of litigation. Litigation refers to the dispute between the parties of civil legal relationship, submitted to the people's court shall hear and decide. Litigation is a civil case must have, litigation has decided all proceedings of case to trial judges. In other words, litigation is the core of litigation, litigation activities are all around the subject of litigation to start. The lack of litigation, the dispute will not become an independent lawsuit, filed. If the other party to the case of litigation and the court has the referee before the litigation of the same, regardless of the party put forward how different from the previous case litigation request, the court will be the same after the case with former litigation object the same that "non bis in idem"; on the contrary, if the party put forward litigation request and another case before the court of claims are exactly the same, but as long as the object of litigation, the court shall still be accepted as new.
The theory of litigation object is very complex, numerous doctrines. Controversy throughout the old and new theory of object of action, the focus of controversy is the main object of action recognition criteria. Since the identification standard of different, resulting in different theory in non bis in idem and res judicata issue came to a different conclusion. While both substantive law or procedural law identification standard identification standard, are unable to solve the identification problem of the standard all litigation, there can not solve the problem, a solution to all the problems in legal theory, is unrealistic. Therefore, scholars generally according to different types of litigation and litigation, the litigation between old and new recognition to apply.
"The principle of non bis in idem" reflects two basic purpose of civil litigation: justice and efficiency, is the correct reflection of the objective law of civil litigation. If the parties agree to allow disputes litigation, will not only increase the economic burden, will cause the agency personnel, material and financial resources to waste, increase the agency cost of solving civil disputes, and if the losing party believe they can once again bring a lawsuit, they never respect the court's decision, and stubbornly refused to implementation of the adverse decision, endless litigation, but also stimulate the disrespect for the court decision, thus seriously weakened the efficiency of the court system, do not meet the goal of value benefit. At the same time, repeated action will make the legitimate interests of the parties have not timely, late justice, also do not accord with the value goal of justice. Based on this, "the principle of non bis in idem" has a very important position in the world in the civil litigation system.
Our country the law not to "non bis in idem" as a legal principle clarify. "Civil Procedure Law" article 124th (five) provides: "the judgment, ruling, mediation has taken legal effect of the case, the prosecution, notify the plaintiff to apply for a retrial, the people's court to withdraw the ruling but except", this is the res judicata negative effect, can not be covered or replace the incident no longer principle itself, is not the true sense of the "non bis in idem" principle. "Non bis in idem" as an old principle of civil procedure law in the judicial practice, consciousness has been deep into the legal occupation of our country, "Civil Procedure Law" in the next revision should be the basic principle in the civil procedure law, and to be clear, standardized in writing on the.