On The Nature Of The Litigation Contract

"The Litigation Contract"~1,a law concept of the civil procedure law-related theory in the civil legal system,since being raised,has gone through a shift from "negatively speaking" to "definitely speaking".Nowadays,the agreement on the validity of the litigation contract has gradually achieved the mutual recognition while the argument on the nature of litigation contract is remaining on the move.The research of litigation contract's nature has two significant meanings:First,the litigation contract's nature,as a fundamental problem of the litigation contract theory,had determined the litigation contract's establishment,its important document to be effective,its potency,its relief and the like;Second,given to the disputes rather than unanimous agreements existing in the people's understanding of the nature of litigation contract,it leaves a leeway to get further probation.In view of the fact that the litigation contract nature manifests profound theory and practical significance,this article is therefore determined to take "the litigation contract's nature" as the research subject.The whole essay is mainly divides into four parts.The primary content of the first part:The contract is one kind of expression such as "meeting one's needs","reaching an agreement" or "making a promise".Its chief feature includes:the main body of a treaty must be a plural number;the main bodies of a treaty are created equal;the contract is established on the basis of unanimous requirement;the contract contains "the debt".The lawsuit contract,also one kind of contract,similarly includes the above content of the contract.However,the litigation contract is eventually different from the contract on the Civil Juristic Law.On the contrary,it has its particular content in the litigation and its chief feature lies in:the main bodies of a treaty are merely litigants with the opposite benefits;the main target of the litigants concluding a litigation contract is to generate a lawsuit effect,;The litigation contract's primary coverage is the punishment for one's lawsuit right,with the exception of lawsuit reconciliation,which has punished both the lawsuit right and the entity right;The litigation contract also has the nature of "the debt",however,this kind of burden is not the one on the Civil Juristic law,but one on the procedural law, moreover,according to the acting obligation and the duty of absence,the litigation contract can be divided into the positive litigation contract and the negative litigation contract,both with different important documents to come into effect.Not only requires the agreement reached between the two parts but also requests the duty part to positively fulfill his certain acting obligation,namely,to submit the litigation contract to the court,can the former become effective;However,the negative litigation contract can come into effect at the moment when the litigant's agreement achieves,requiring no need of submitting the litigation contract to the court but requesting the volunteer to negatively fulfill certain duty of absence.The primary content of the second part:The validity of the litigation contract has already been generally acknowledged while the nature of the litigation contract is still experiencing the fierce debate.It mainly has three such theories as "the civil juristic act theory","the litigation act theory" and "the compromised theory"."The civil juristic act theory" regards the litigation contract as one kind of civil juristic act,which can only generate the legal consequences of the civil juristic act,with the result that one side has obtained the request power in the civil law while the other litigant has to take or not the achievement burden duty on the civil juristic law."the litigation act theory" assumes that the litigation contract, belonging to the litigation act,should not only be limited to the litigation effect clearly formulated by the procedural law,even if the procedural law does not clearly stipulate the litigation contract,it should also be regarded as the litigation act with the legal effect in the procedural law."The compromised theory" thought the litigation contract cannot be simply delimited to the civil juristic act or the litigation act.Different litigation contracts have different natures.However,due to the debaters' various angles of observances and different perspectives,disputes can certainly again appears.The theories above all have deficiencies more or less,among which a common but significant flaw is lacking of a good knowledge of the litigation act limits.The concrete manifestation is that the incorrect master of the litigation act's limit standard has caused the undistinguished recognize between the litigation act and the civil juristic act.Therefore,it becomes difficult for them to achieve the correct understanding and the judgment about the nature of the litigation contract.The primary content of the third part:the limits standard of the civil juristic act is quite unified.Actually it is an act that expresses the essential factors by the meaning and according to the content expressed by the meaning further generates a certain civil juristic effect.But limit standard of the litigation act has a great dispute.Traditionally there are two kinds of theories:the important document effect theory and the effect theory."The important document effect theory" regards the litigation act as the litigation procedure while the litigation law as the act stipulated by the important document and its effect."The effect theory" considers all the acts generating the effect of litigation law as litigation acts."The important document effect theory" narrows the litigation act while "the effect theory" broaden it,thus leads to the show of the third theory called "the main effect theory".Its major point is that when the effect of the litigant's act are simultaneously stipulated in the litigation law and the substantive law,his nature of act must be determined by what law area the main effect of the litigant's act belongs to."The main effect theory",actually one kind of revision of the extremely wide malpractice of "the effect theory",though has quite a good reasonability,also has its flaws lying in how to judge the main effect and the minor effect.The flaw of "the main effect theory" is not irreparable.As to the limit of the litigation act,the post-revision "main effect theory" should be adopted.In other words,it is to divide the litigant's act effect into the foundation potency and the supplementary potency,and its judging standard is whether this act has the dependence on the litigation procedure.Concretely speaking,if the act of the litigant depends on the litigation procedure,the off-litigation procedure will produce nothing predicable.Therefore,its foundation potency will belong to the litigation law domain and the litigant's act will belong to the litigation act.Although it may spontaneously produce the effect of the substantive law,this is only the manifestation of its supplementary potency and the extension of its foundation potency without affecting its nature of duty litigation act.To recognize the nature of the litigation contract should be carried on from the subjective and objective perspectives.The subjective aspect refers that the litigant wants his behavior effect to occur in what law domain,namely target issue;the objective aspect refers that his effect itself occurs in what law domain,namely effect issue.Subjectively speaking,the litigant works out the litigation contract in order to exert the influence to the litigation law condition and further produce the effects on the litigation law.Objectively speaking,the litigation contract,on the one hand is in accordance with the standard of the post-revision of "main effect theory",on the other hand is naturally different from the civil juristic act.. Therefore the litigation contract is not the civil juristic act,but one kind of litigation act.The primary content of the fourth part:The litigation contract belongs to the litigation act. Its establishment document mainly contains:there must at least be two main bodies with mutually opposite benefits;the primary content of the litigation contract that meets their mutual benefits should be the agreement of the two sides' relative requirements;the main goal of the litigation contract between the two is solely to obtain the litigation law effect.The important document for litigation contract to come into effect mainly includes:the main bodies to conclude a treat must possess the litigation act capability;the content of the litigation contract should be comply with the compulsory regularity of the law and the public interests;the litigation contract must adopt the legitimate form;the litigation contract should free from attaching the extra condition and the deadline;the positive litigation contract requires the litigant compulsorily propose to the court in a duty manner while the negative litigation contract demands the volunteer to fulfill the absent duty.The effect of the litigation contract is the binding force that generated by the legitimately established and effectively carried litigation contract.The litigant should carry on his litigation act according to the rule of the litigation contract;the court should respect it rather than make out in the contrary direction.The relief of the litigation contract comprises of the violation relief and the deficiency relief.The violation of the litigation contract will certainly exert a certain ill effect on the litigant or the court.When the litigation contract fails to meet the important document to come into effect,it is called the deficiency of the litigation contract,which can also be divided into the procedure defect and the meaning defect.The former one is relieved by conforming to the manner of the litigation act;the latter one is surely done as the former. Nevertheless,due to the adoption of the "expressionism" in the principle of litigation act, from the respect of the guarantee of the procedure's effective standpoint,the latter one cannot be done unless under some particular circumstances.