| When a judgment is fixed, its adjudication about the object of civil action has some fixed validity which is called Res judicata. The principle of Res judicata is one of the fundamental rules and values, and is also the ultimate safeguard for the judicial power to be the supreme mechanism to solve the social disorders. But it is a pity that scholars of our country have not paid enough attention to the research into Res judicata, and this accordingly results in some problems in the practical area. Therefore, more efforts should be made to change this situation.This thesis is an outcome of the author's research into the theory of Res judicata. It is made up of four parts, with a total of 37 thousand words .Part 1 : Concepts of the fixed judgment and Res judicataIt is well known that the first task of theorious research is to have the commonly accepted definitions. In this part, the author firstly tells the definition of fixed judgment and suggests using the term of "fixed judgment" to replace the term of "legally effective judgment", secondly, the author states that a fixed judgment has five kinds of validity, namely, binding force on the courts of law , procedural validity, Res judicata , forming validity and executive validity , with the aim of distinguishing Res judicata from other kinds of validity.Part 2: The history , the nature as well as the functions of Res judicataIn this part, the author introduces the history of Res judicata principle, and brings to light the nature of Res judicata from the standpoint of substantive law point, procedural law theory and double-character theory, and gives a detailed account of the functions of Res judicata from different aspects. Finally, the author comes to a conclusion that the nature of Res judicata is validity in the sense of civil procedure, which is based on the judicial power and aimed at the protection of state and social interests in the first place and the personal interests in the second place.Part 3: The forming factors of Res judicata and the scopes of Res judicataThis part firstly tries to solve the problem of under what conditions the parties ofthe latter lawsuit or the courts of law can turn to Res judicata of the former fixed judgment. The author holds that Res judicata can be quoted when the latter lawsuit has the same object ahe same cause and the same parties. As for the time scope of Res judicata , the basic time is at the end of the trial .When the judgment is fixed , Res judicata begins working and when the fixed judgment is abolished , or the papers of the fixed judgment disappeared permanently , Res judicata ends . When it comes to the objective scope, the author insists that only the adjudication in the Dictun about the object of lawsuit has Res judicata, while the adjudication in Ratio Decidendi generally does not have Res judicata, it just has so-called "controversies' effect". As far as the subjective scope is concerned, the author holds that the Res judicata normally covers the parties. But sometimes it also reaches the derivations of the parties, people who have possession of the object of action for sake of the parties on their derivations, and those who replace the real parties of the object of the lawsuit to bring the lawsuit.Part 4: Res judicata and procedure of the retrialThe retrial procedure is to abolish Res judicata of a fixed judgment, So the scope and frequency is actually related with the scope of Res judicata. Because the current stipulation about the retrial is not specific enough and the retrials are launched too frequently, in the author's opinion, the courts' power to launch the retrial should be done away with, the public Prosecutors' power to launch the retrial should be limited to the cases which damage the state or social interests, the way for the parties to launch the retrial should be improved by establishing the lawsuit of retrial by limiting the upper court to conduct the retrial and the times to launch the retrial, by shortening the expiration period to launch the retrial. What is more impor... |
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