Study Of The Application Of Claim In Litigation Of Payment

Litigation of payment is the most widest litigation used suitably in the civil litigation, and it is confused for civil litigation researcher that identification of claim in confliction of claims in litigation of payment, therefore, which is also named"the important field of theory of claim"by some researchers. Identification of claim in litigation of payment is not only the center thesis of civil litigation theory, but also litigation practice thesis.Although many researchers of civil law system have pay persistent efforts to the establishment of conception and identification standard of claim, they still continue to research this topic so far. Moreover someone called it"Goldbach Conjecture"in civil litigation law. In recent years, civil litigation law researchers in China have paid attention to claim in litigation of payment, but theory branch about that have not been established.Through investigating oversea classical theory and the domestic research results, accompanying with contemporary law and justice, this paper will propose the identification standard of claim in litigation of payment in China, hoping the identification of claim in litigation of payment plays a role in civil litigation, especially in justice.In the first chapter, the various classic theory of civil law system and domestic main academic viewpoints were introduced and evaluated, in order to show the development of claim in litigation of payment theory, of which induce that the dispute focus of claim in litigation of payment theory is how to deal with the several claims resulted from the confliction of claims in civil litigation on the basis. There are always some advantages and disadvantages in both substantive law theory and procedural law theory.In the second chapter, domestic legislation and justice of claim in litigation of payment were introduced and estimated, which revealed the knowledge and confusion of claim at legislation aspect in our country. With special cases in the justice procedure, i.e., one dispute unsolved once and confliction of claims, it was found out that judges obey the principles in the claim.In the third chapter, the importance of constructing the domestic theory of claim in litigation of payment was stated, and discussed which factors should be considered in this theory. On the basis of that, it was proposed that this theory should be established on the basis of substantive law theory, by two means of the treat confliction of claims with civil law and judge's right of clarification, in order to solve repeat litigation resulted from confliction of claims.