The civil case and the litigation subject

A summary of the theory of the object of litigation, and in civil litigation status

Litigation this concept originated in Germany, its theoretical development has gone through the traditional litigation theory and new subject matter theory, the traditional theory of object of action that is old substantive law, the new theory of object of action has undergone two branch said, a branch and new substantive law development process. So-calledSubject matter of litigation, litigation refers to the contents of the object, that is the request of the parties to court and the judges, to determine the legal status of a certain or some kind of legal effect of the request. Therefore,Litigation is also called "litigation object" or "action.". Litigation or litigation object, refers to the dispute between the parties, the plaintiff requests the court's substantive rights or legal claim or demand.The civil procedural law of our countryIn the analysis as elements of claim in litigation of time,Simple will define litigation: the dispute between the parties, civil legal relationship and requirements of the people's Hospital of the referee. This concept is onlyEntities involved into litigation legal relationship, and do not go to rights and substantive law on the right to request.

The object of civil action theory is the core of procedure law theory, has the extremely important role and significance in the civil action.

Litigation is the core of the various parties in civil litigation.By the parties in civil disputes in the lawsuit, filed the complaint in addition to show the subject of litigation cases, but also that the party between what happened and the requirements for the referee to dispute what matters, the former is the subjective factor V is established, which is the objective elements of lawsuit, two missing in action cannot be. Litigation is one of the objective elements of litigation, appeals and defense parties are carried out around the object of litigation, the court's trial activities should be carried out around the subject of litigation, andJudgment is the final processing of the object of action.

　　The litigation object is the object of the court and the referee. regardless of scholars on the subject of litigation awareness much difference, there is little agreementThe decision of the court to the request of the parties. The request of the parties, sometimes known as declaration of litigation, the provisions of both parties request of quality, such as confirmation, payment, formation of rights protection request form, including the request to determine the amount of. The court cannot leave the litigation judgments.Litigation object determines the type of the period of limitation of actions. litigation different determines the nature of the casePrescription litigation cases of different nature is different.In our country, the period of limitation of action in general case is two years, especially the limitation of action period is one year. Therefore,The nature of litigation related to the different parties can prosecute court accepted the case, the rights of the parties can be subject to judicial protection problems.

　　The object of action is complicated, the judge of the court litigation separation, addition and change of basis. Generally speaking,An object of litigation is a litigation (cases), litigation is different form different v. (case). In a procedure, at the same time, there are more than two litigation, constitutes a "joinder" or "objective with V.". The different understanding of the subject matter of litigation will lead to different interpretations of the merger v..In one case there is only one subject, there is no litigant separation, separation only if there are more than two litigation can occur v.. In addition, litigation is one of the elements of V., V. change refers to the change of the elements of the action, so the litigation is one of the important basis for judging the change of v..

The concept and characteristics of civil case, two

　　The causes of civil cases is the case content, is the concentrated expression of the legal relationship. The caseThe case is a comprehensive science which reflects the nature of case name.The case must be scientifically determined according to legal provisions and the legislative intent. "cause of action of civil case court rules" and is formulated by the Supreme People's promulgated by the Supreme People's court, so the civil case definition should be more authoritative. "on the issuance of" civil case case gauge fixed > notice "clearly pointed out:" the cause of action of civil case is the name of civil litigation, the civil law reflects the nature of the relationship is the case involved, the people's Court of the legal relationship between the litigation dispute contains the."

　　The civil case in the civil law as the basis. The civil caseIs a form of civil legal relationship, but the smallest unit should reflect the right to request the civil legal relationship or civil law.The civil case the complexity of the case, a case may involve many facts, necessary by analyzing cases Abstract basic properties and the core to case.The civil case is the formation of civil cases through highly generalization of the essence, reflects the case. The civil case is normative, unity and stability.To determine the civil cause of action must be combined with the specific case. Different types of civil cases in different cases, the same type of civil cases must be consistent.

Three, civil cause of action and the litigation subject analysis

　　The civil case and litigation are aimed at fixing disputes, help people to understand the nature of the dispute, they are in the object frame the prosecution, court verdict object, two are the object of study in the area of civil litigation. The civil case case, refers to the civil procedure law to describe the embodiment of parties request court court decision in general matters.The case is actually the litigation in the decision statement. Therefore,To identify the object of action should be identified. The parties to the people's court case directly reflects the object of civil litigation. The legal relationship between the parties to the dispute is in fact and litigationIn fact, this is our civil litigation object in all the extension.Litigation and civil case is life.

Theory of litigation object is the cornerstone of civil law countries, civil law theory, theory of it directly affects the development of the science of civil procedural law and civil litigation practice and progressThe civil case is accepted and trial of the Supreme People's court for civil cases in China, according to the division of civil substantive law on criminal typeRemarkable, the gap between the two. Specifically, two have the following differences:

One is the theory of two different heights.The object of action is the foundation of civil litigationThe basic theory of civil litigation, is. The theory of procedural subject has long been regarded as the Goldbach conjecture in the area of civil litigation, its theory is highly remarkable.The civil case to focus on practical, it is starting from the practice, the people's court in the trial of civil cases, the classification of a civil case of numerous and complicated, due to the civil case is still in its initial stage, the theoretical system is not yet mature. Compared with the litigation tend to practical application,The object of action is of the essence, the object of litigation is the external manifestations of the.The utility can be close to the nature of representation, as long as the correct expression.But the object of action theory is broad and profound, running through the whole theory of civil procedure law system, far-reaching, identify the object of action is the right to determine the litigants, the premise of the civil judgment of res judicata scope.

Two is the two categories according to different: the theory of civil law is in accordance with the classification of civil legal relationship as the foundation, combined with the current legislation and judicial practice and is divided into ten categories, and the object of action is generally in accordance with the ultimate aim of the parties filed a different and divided into action of performance, action of confirmation and formation of v.. There are also in accordance with the subject of a lawsuit can be divided into the action, counterclaim and participate in litigation, its classification and substantive law little contact.

Three is the two responsible for different functions.Problem solving disputes identification theory of litigation, civil case is litigable dispute case classification. Theory of litigation object development, is the smallest unit of disputes, substantial scientific definition of dispute. The civil case is to do many things at once and the civil substantive law, various disputes induction, summary and forming system. From this point of view,Relationship with the substantive law of the substantive law and the related than litigation closely.

Four, the conclusion

October 29, 2007 by the Supreme People's court trial committee of the 1438th meeting of the,Civil cases of the regulations shall be implemented as of 2008 April 1 date ""In civil cases, the Supreme People's court will cause of action is divided into ten parts of 30 types of 361 , and the civil case is divided into two categories:One kind is suitable from the ordinary procedure case case, another kind is the special procedure applicable to cases where the. According to the Supreme People's Court issued the "notice" Institute pointed out, apply the ordinary procedure case should be based on the nature of the legal relationship between the parties to the dispute to determine. From the "notice" of the content, in fact of the case are different definition,Some of the specific claim as a civil case;A number of legal relations is based on the same facts generated as a civil case out. Determine the nature of the case, the same should adhere to the principle of the new dual meaning, i.e. if the litigant request directly as a case case, civil case is presented to the court the plaintiff referee requirements; if multiple or a legal relationship is a case by, legal relations between civil litigation case is entity law itself. But there is a need to explain, the substantial right or legal relationship is the legal relationship of the abstract, rather than substantive rights and obligations, the traditional litigation theory therefore, in relation to the object of action and two, appeared in two cases: one is when the action is used requests directly to express, equivalent to the object of action; conversely, if a certain legal relation as the cause of action of civil cases, the case is different from the object of litigation, the court only is for or identify the parties claim basis to provide a supporting role, object does not constitute the court. Therefore, understanding the case cannot be absolute, single. At present, the system in our country only is a product of the substantive law concept, the main performance is the civil legal relationship of entity law introduced the characteristics, seldom consider the procedural meaning.

In short, in the new dual meaning theory,If the entity legal relationship is established by the case, is different from the object of litigation;If the procedure is to determine the declaration of litigation cases, "claims = litigation = case". In additionThe Supreme People's court "about the causes of civil cases that issued < > notice" provisions in the scope of the decision, not a court to hear a case, for the new unknown cause in the practice of the courts, the Supreme People's court by timely reporting way continue to improve, so that regular collection, sorting, screening, selection, timely thinning to supplement the relevant case. In this regard, the new rules to break the closed nature of the original system, not only to better adapt to the open characteristic of the litigation, but also meet the needs of a variety of social life. while in the traditional theory of object of action, the is not the object of litigation, but generally given our current theory and judicial practice circles said recognition, case of litigation and litigation to determine success or failure is important. At the same time, the Supreme People's court "on the issuance of" the provisions of civil cases) Notice " also clearly pointed out, is of great significance, the introduction of this provision specifically: (L) to establish a scientific, perfect the system of civil case, is conducive to the parties to choose exactly the appeal by; (2) to the people's court in the civil register and trial to accurately determine the litigation issues and the correct application of the law; (3) to improve the accuracy and scientific judicial statistics of civil cases; (4) to carry on the classified management to accept the case, in order to better serve the trial standardization service, provide valuable reference for the judicial the people's court decision.