The parties to the case where the court and litigation request is inconsistent, the court should the case? How should a judgment or ruling? This is a problem need to be solved urgently in judicial practice. Relationship between this problem is actually civil cause of action and the pursuit of. Make clear this problem, regardless of the judges, lawyers or parties, even on the number of work such as filing, trial courts, records management and so on, are meaningful. As the judges and lawyers differences in understanding and grasping the investigation or prosecution, cannot be dismissed by the court or the court cases have occurred, how to accurately determine the cause is a difficult task, not only is the hard work of lawyers, more hard judge.

China's current "Civil Procedure Law" provisions of article 138th: judgment shall state: case, claims, facts and reasons of the dispute. In fact, from the parties to a people's court to decision, execution completed, civil lawsuit case always play a role. But for a long time, because there is no definite provision about the problem, resulting in the people's courts at all levels in the case under the provisions of the act as one pleases. This is not conducive to safeguarding the interests of the parties, is not conducive to the court, the case file to the administration and the judicial statistics work also brings a lot of difficulties. Therefore, the judicial interpretation of the case made clear is very necessary.

The Supreme People's court in February 24, 2008 issued "on the issuance of the notice of the provisions of civil cases >", the provisions of the civil case "decision" (hereinafter referred to as "Regulations") plays a shall come into effect as of April 1, 2008, the original trial case at the same time. In order to facilitate the judicial personnel and the public to better understand and master the "rules" content, the Supreme Court of the members of the research team collective wrote "the Supreme People's court civil cases of the stipulation and application" to understand a book. Visible civil cause of action has important significance, is worthy of study.

So, what is the cause? What is the role of nature, it? It is for the civil litigation request form what relationship? These problems make clear, in front of the problems will be smoothly done or easily solved. Therefore, the author attempts to do some discussion with colleagues, law.

A civil case, the understanding of the

Some people think that the proposed by the plaintiff prosecution claim in a civil action (such as divorce, adoption, inheritance, damages, return property etc.); some people think that the case is briefly summarized case nature, content; others think that the case is made or abstract. In the author's opinion, the above definition is wrong.

First of all, the claim is not equal to the. The literal meaning can be interpreted as the origin of the case or the case is based on certain legal relationship for litigation request, and proposed certain legal relationship based on the claim. The claim and the closely related, but not equivalent to the. The litigant request, is the civil rights and obligations between the parties dispute after the lawsuit the power request. It is rooted in the content of the legal relationship, is the external performance of the legal relationship between the controversial nature, only the content of the legal relation of itself to reflect the dispute. Compensation cases such as deliberately hurt others body caused by, parties may present a number of claims, such as: request compensation for medical expenses, loss of working time fee, can also request an apology from the litigation request, but said, these are which may infringe citizen's right to life and health based, case is only one: tort the dispute. Therefore, the appeal does not equate with.

Secondly, the case is said to be "the nature of the case, the content summary" although grasp the connotation, but here is what was refers to the litigant lawsuit request content or the court? Or is the legal relationship refers to the controversial content? Are not clear, such as the commonly used "the return of property", "interference" case, can only reflect the request of the parties can not reflect the content of the basic legal relationship disputes.

Again, the case is defined as "the origin of the case or abstract" too literally, here the "content", its meaning is not clear. Therefore, the author thinks, should understand this case, namely: the show is the origin of civil cases, some civil legal relationships based on the name, and confirmed the civil litigation. So the author thinks that the Supreme Court civil case "Regulations" in the definition of "civil cases concerning civil case name, reflect the nature of cases involving civil legal relationship, the people's court for legal relationship is the generalization of the dispute." That's perfectly correct.

The main reason of this definition is: 1, say from the philosophy, the case belongs to the category of epistemology, both the prosecution indictment marked by or judgments decided case, belong to what kind of legal relationship based on the adjustment to the case, how to put forward requests of rights of understanding or judgment. A party's judgment is often based on the evidence itself, but the court found in the case review is according to the plaintiff to provide material for preliminary judgement, but after hearing about the proof, cross examination trial, judge is the final judgment screening according to the authority on the parties to a dispute legal relationship after. The first reflected in the plaintiff's complaint, is a kind of understanding of the plaintiff, entered the prosecution and trial, the judges will be identified. The link and distinction between the two. If only the case that is the name of the civil legal relationship under the authority of a court to confirm the objective is that ignored the party prosecution links and the meaning of the parties, at the same time, also do not accord with the law of the development of cognition theory. Because the parties and the judge's cognition of the cases have a full from one sidedness to; from local to whole, from phenomenon to essence of the process of cognition.

2, to determine the different case, means the legal basis for the different. The legal relationship between the parties with the rights and obligations is the content and the protection of the law of social relations. In the event of a dispute over this relationship, it is necessary to have the appropriate law to adjust.

Therefore, civil litigation case, is that the origin of civil lawsuit is a civil legal relationship based on, in order to determine the name of the civil litigation.

Two, the nature and role of

From the analysis of the demand of the dispute, the civil legal relationship which reflects the nature of litigation cases controversial, is the party put forward the starting point corresponding to the facts and legal basis; from the court, it is not only the civil register statistics in civil case name, but also the judge hearing foundation lawsuit dispute and the applicable law to determine the in the case of. So, where is by nature a specific legal relationship in civil procedure of litigation. The significance lies in the correct establishment:

First of all, the civil cases is accurate, concise, unified, have very important sense to the parties and the people's court. "Accurate, concise, unified case, on one hand can make the parties to the dispute point stick out a mile, to facilitate the parties to the proceedings for dispute adducing evidences; on the other hand, there are basic conditions for court cases, according to the party's positions and provide evidence, accurate application of laws, civil dispute resolution".

Secondly, to correctly determine the civil lawsuit case, to an outsider to understand the case, the people's court for trial supervision work. "Civil Procedure Law" the 122nd stipulation: "the public hearing, it shall announce the cause of action and the names of the parties, the court time, place." Through the case, an outsider can quickly understand the basic situation of the case, to attend the court hearing, to better play to the role of supervision, so as to improve the transparency of judicial trial, the judicial justice, but also to enhance people's belief in law, improve the judicial authority.

Once again, the court, civil cause of action is accurate or not has a great influence on the judicial statistics. The causes of civil cases inaccurate determination of civil cases, the unreasonable regulations, will affect the credibility of judicial statistics. Only to develop a unified action standard, all kinds of cases are determined according to the unified standard, can improve the credibility of judicial statistics. In the archives management, has become an important basis for the management of the case file. Determination of case case is accurate, concise, unified will affect the civil case file is scientific, reasonable. Accurate, concise, unified by the parties to consult the case materials, has very important significance for the relevant authority for review, supervision cases.

Three, about the civil appeal

Civil appeals, namely civil proceedings referred to as. It is the party especially the plaintiff lawsuit proposed specific, concrete civil claim. That is the way people usually said the plaintiffs to sue, the entity rights by the people's court to the defendant claims. The litigant request with a specific, concrete, executable characteristics. That is to say, not can be sued, but according to the facts of the case and the civil law regulations specific, put forward specific claim. For example a tort cases based on the demand, demand the cessation of the infringement, restitution, apology, compensation for the loss according to the current law can. The parties can only select single or multiple choice in this range, beyond the scope of the legal request.

"Civil Procedure Law" article 108th (3) provision "has a specific claim", refers to the plaintiff's rights advocate, in the content and scope, to be specific, otherwise no practical significance, and the people's court nor the case to trial and judge.

The litigant request should not only has the characteristics of specific, concrete, shall also has the characteristics of executable. That is to say, not can be sued, but according to the facts of the case and the civil law regulations specific, put forward specific claim. If the parties request range beyond legal appeals, not enforceable, and also lose litigation. Because the litigation is to safeguard their own rights and interests of the parties to the judicial relief way, in addition to administrative and economic means, judicial settlement of disputes is often the last line of defense. The function of litigation is to protect the rights and interests of the parties to the purpose. Therefore, protective measures maneuverability is the key.

We can say, the claim is refers to the specific legal effect on the substantive law or the legal effect of the litigation claim. China's law stipulates, the prosecution must have the claim and the fact reason specific, generally claim that appeal, refers to the parties to achieve the effect on the concrete law. In the specific case, the litigant request will be as the main line runs through the prosecution, the court may determine the legal relationship of the parties of the dispute, the parties around the lawsuit testimony, litigation request, on the legal basis of the layers of debate, in fact different statements, or the legal relationship of the different understanding, in the final analysis, are reflected in the litigation request. The judge of the case review, making judgments and judgements are around the litigant request, the content of judgment is the abbreviation of appraisal content, text of the judgment is the litigant request to answer. The plaintiff's claim must be specific, definite claim should be:

(1) must be specific and clear requesting the Court confirmed what or request the defendant do what? How's it going.

(2) must be specific request, such as the specific number clearly the requested amount of money or species.

Relationship between the four, the cause of the action and the litigation request

For the case if the case with the fact not symbol, should register and litigation request inconsistent,? This is controversial in practice. Some people advocate that does not affect the case. Because as long as consistent with the conditions of Article 108, the court should register. If you are prompted to correct improper intervention or First impressions are strongest, will appear in court. Some people think that the plaintiff should be correct, in order to save costs, improve the efficiency of lawsuit. The author thinks, there is a judge's judicial philosophy which is first question.

One case: a company received a housing lease contract of assignment, a company immediately to the lessee company B claims payable rent stage. For the case "debt summary transfer contract disputes". This will have different understanding. Some people say that there is no dispute between the parties to the contract of assignment of creditor's right, a company receives a lease contract creditor, shall advocate the lessor's rights, the nature is a lease contract disputes, rather than debt summary transfer contract disputes. Otherwise, it belongs to the prosecution object error, the object of litigation, appeals and serious, should be rejected the prosecution. Some people advocate the case the plaintiff should prompt, if the prosecution can persist, the prosecution dismissed. The judges found this problem, also can prompt the parties, the self correcting, can continue the trial. The current law does not expressly provided, the operation is not a unified judicial. From the court to remain neutral, impartial point of view, should not prompt, embodies the principle of party autonomy; but from saving the cost of justice and efficiency that suggest the necessity. But how? How much tip? Is a matter of justice justice of law enforcement image. The author thinks: who meet the conditions prescribed, shall file. Because of the law has not stipulated the inconsistent with the facts of not filing the case, therefore, the court can be retained by the kind of self cognition. During the trial, the court investigation, the cross examination and debate, the plaintiff of the case and demand question should be the basic judgement, if it does not take the initiative to change, the court shall be ascertained in accordance with the law of the plaintiff object error, dismissed the claim.

Case two: a lease company B stalls operating 20 years, in the business for 5 years, company B to expand the stalls increase the construction area need to reason, to a small amount of compensation for the cost, the lifting of the lease and a booth contract. Continue to lease stalls will be higher than the original price by several times to re sign the B, the two sides dispute. In the meantime, company B forcibly removed a in the storage of goods, including a number of demolition, the original booth room, expansion the new booth. A then sued the company B, contract disputes or disputes? Different case will have different demands, of course, directly lead to different results of action.

It is not difficult to find the request for the proceedings to lead and generalization, the legal relationship of litigation shall have revealed the function. For case two, should be based on a claim damages for the breach of contract and continue to perform the contract or tort claim to determine the cause.

So, what's the difference between case and appeal?

Legal relationship litigant requests, which determines the lawsuits by litigation request, this is their connection.

The party is based on the cause of the action and the litigation request. A kind of civil legal relation to be the cause of the action, must first be a dispute between civil subjects, followed by the parties in dispute to the court. The claim is the legal relationship of asking the court to make specific judgments based on the request. Contact case and appeal. Usually the case case is a, is also a case name, but because of the existence of counterclaim and parties increase, modify the claim case, so the objective existence of a case with the names of two or more than two. Thus, we can see the case because of the connection demand:

1, the decision to appeal, claim to produce according to the legal relation dispute, cannot leave each other dispute legal relationship and legal fact appeals. This is the case because the decision logic relations. But in some cases, demand changes can also increase caused by the. As a defendant, or the plaintiff claims to increase, and complex litigation request different legal relationships based on the legal relationship between each other, which is closely related to. In order to reduce the parties v.tired, judge the case and some can be merged, some requiring parallel.

2, a case can be caused by a number of appeals, but an appeal can only correspond to a case by.

Therefore, at the start of the trial procedure at the same time, take one of the cause of the action determines the object of trial in court, the claim holds jurisdiction of the court. The court shall not leave the cause of the action and the litigation request and at the trial and adjudication. Only clear the cause of the action and the litigation request, to the parties to determine the object of attack and defense, in the lawsuit scope, take action accordingly.

The cause of the action and the difference between litigation request can illustrate: a sues B continue to perform a contract, in the process of litigation, litigation request is a request to the court B what to do and how to do. A filing a claim is based on the parties to a contract relationship. The name of this contract the point is the lawsuit case, such as the equity transfer contract disputes, contract disputes and so on. Thus, both has the following differences:

1, the cause of the action of cases from the whole, the claim is a concrete proposition. Such as a precedent of the.

2, the cause of the action has relative stability than litigation request. The former even change, nor the litigation rights of the parties, but by the authority identified. In the prosecution of the cause of the action, have specific, just as if the facts of the case and the judge may not be the same, but the parties can not change, only after the judge found. If allow parties to change the original case, is actually equivalent to produce a new v.. The parties can change to the claim, but can also give up, increase or decrease the claim. Litigation request change does not cause change of legal relationship, nor lead prosecution change. In the process of the proceedings, the people's Court of the nature and the legal relationship between the parties according to the facts of the case that make inconsistent, the people's court shall inform the parties may modify the claim. The parties shall not change, the judge should be based on facts and law ruling or decision.

3, the cause of the action is the symbol to distinguish the case and that case or is the symbol to distinguish this lawsuit and Peter v.. but, to claim, the plaintiff can request the complex right, may also request that a single right, these do not affect the case of independence. The party also advocates a claim does not constitute a joinder, the change from a claim does not constitute a v. change another claim, the parties to the same case based on the right to request the different re prosecution, the court should be banned, in order to avoid litigation.

General requirements and claims by five, civil litigation case

The appeal of the requirements for the party concerned. In order to achieve the purpose of litigation, the parties concerned shall do the following the appeal:

1, should be concise and to the point. In the summary, concise language to express all the meaning of the parties want to express. The people's court in from prosecution, according to the indictment and relevant case materials for review, the "Civil Procedure Law" provisions of article 108th prosecution conditions, that is the case with a direct interest with the relationship between citizens, legal and other organizations have a definite defendant; of; the claim and the fact that there are specific reasons; belongs to the people's court proceedings and court the court of jurisdiction, to be. The concrete is one of the necessary conditions to meet the demands of the court.

2, the claim should be legitimate. If the plaintiff to the defendant by the court put forward some unfair, unreasonable and even illegal litigation request, is not only conducive to solve civil disputes court, increase the difficulty of the work, a waste of limited judicial resources.

3, the claim shall be valid. The claim lodged by the plaintiff in the litigation process to be supported by evidence, can be fully reliable evidence.

4, the claim should follow the law of change. The parties may change the claim in the prosecution after. The increase, modify the claim or counterclaim, should put in evidence before the expiration of the term. No clear proof deadline, should be in after the case is accepted, the court debate before the end of. The parties make, modify the claim, the people's court shall re specified time limit for adducing evidence.

The specific requirements of the case and the appeal of civil litigation include:

1, we should distinguish between conditions determine the cause. Confirmation of the confirmation process is actually claim. In judicial affairs, this process is often more complicated. If the dispute of civil legal relationship disputes by the parties is only one, the nature of substantive legal relationship between the parties can take as a case. If there are multiple legal relations, legal relations will have to sort out the logic relation and circumstances. For example: the main cause is determined according to primary and secondary to the settlement of the case role. More than one entity of legal relation of civil rights and interests of the parties in dispute, that is to say, the entity of legal relation of civil rights dispute between the parties in the may have several, at this time, the substantial legal relations which a controversial as the case of the worthy of study. In one case, can not be a two different nature and has nothing to do with the case, because the relationship between the two entities of law dispute actually caused by two different litigation request. Therefore, although the substantive legal relationship in the same case may be more, but the relationship between these entities have legal logic relations inherent. It is because the inner logical relationship between this, makes the relationship between several legal disputes coexist in the same case. But it is also a logical relationship between the substantive law, namely according to primary and secondary to the settlement of the case of the primary and secondary legal relations determined.

2, clear the legal relationship between the parties to determine the cause of the dispute. What will determine what is the case dispute, which is based on the relationship between the positioning of the case, treatment has great effect on the case. Such as the infringement as the basis of claim, the causal relationship between elements of illegality should consider the defendant's subjective fault, damage degree, the defendant behavior and the result of tort behavior, and to determine the defendant should bear civil liability. The contract is the foundation of right of claim, to study is the validity of the contract, the performance of the contract, the parties to the breach shall bear civil responsibility and so on. If the dispute between the unit and the laborer qualitative for labor dispute or hire contract disputes, different processing procedures. The former because the pre procedure of labor arbitration, if not through the pre procedure, the court must dismiss the complaint. The latter can be treated by the trial. And in the medical dispute, the same operation bad results, to distinguish between product quality disputes or medical contract disputes, so as to correctly apply the substantive law of different.

3, the judge's confirmation of the

According to the principle of autonomy, the choice of right of claim, the court should not intervene. Under normal circumstances, the case is selected by the parties themselves, but if the parties choose the right of claim or the choice and request right gap does not exist, improper selection, according to the Supreme Court issued the "civil evidence regulations", the judge interpretation right, this is the judge can guide the parties confirmed case based on the re the details of the case, the benefit of doing so is to save the cost of litigation. Of course, to make the judge's interpretation right in accordance with the regulations, to prevent the abuse of judicial power, against the opposite party to evidence of selection and the reply of the direction, not to judge will replace the will of the parties.

In some parties to avoid regulations contract disputes trial, judges shall confirm the case, such as the name for the case for smuggling processing contracts, or a joint venture contract is illegal lending disputes, first of all to the actual relationship between law was confirmed, then in accordance with the law on illegal parties be punished.

On the general practice of confirming, issued by the Supreme Court. "The regulations" has been clearly defined. This will not repeat them. The court accepted the case after all is according to the nature of scientific classification, classification management means, the judge also has the right to recognition by the. However, the judge should only under special circumstances, according to the authority to determine the.

Notes.

First: "the practical law dictionary", "dictionary of Chinese law, procedure law volume"

II: "Encyclopedia of Chinese law, procedure law," "modern Chinese Dictionary"

③: "new common law dictionary"

Authors: Yuan Jingkuan

Editor: Li Zhe