伊春园2024直达

Academic Papers

REN Zhong: On the Relationship Between the Object and the Claim of Civil Litigation

2021-04-07

Abstract: The reconstruction of the relationship between the object of litigation and the claim plays a key role in the connection between the civil procedure law and civil law, and ensuring the implementation of the Civil Code. The opposition between the focus of civil litigation legislation on the claim and the focus of theoretical research on the object of litigation has not only brought about the separation of practice and theory, but also caused‘different judgments in the same case’. From the perspective of the traditional theory of the object of litigation, the civil procedure law and its theory of the Soviet Union and Germany adhere to the unitary model. With the gradual return of the identification standard of the object of litigation from the civil legal relationship to the substantive claim, the traditional dual model based on the Civil Procedure Law of 1982 (For Trial Implementation) needs to be reshaped. On the one hand, the unitary model should be used as the principle in the understanding and application of the relevant litigation claim norms. On the other hand, the claim in the sense of declaration of action may still play an important role in some litigation systems, especially the change of claim and its interpretation and the interruption of limitation of action. Nevertheless, the‘claim’, as the condition of prosecution and the identification standard of repeated prosecution, should still be understood as the object of action. The reconstruction of the relationship between the object of litigation and the claim is not only a concentrated microcosm of the changes in the mode of the major basic theory of civil litigation in the past 70 years in New China but also a specific illustration of the integration of the general theory of law and the basic theory of departmental law.