On The Effect Of Pre - Put The Facts

The theory of pro-decided issues has been a sensitive area of the doctrine of civil procedure. The Supreme Court of the People's Republic of China announced their opinion about this matter in a judicial explanation. But there are many limitations about the explanation. With the analysis the doctrine of issue preclusion of America and the doctrine of binding effect of issue of Japanese, the writer try to supplement and pefect the rule.It should start from the conception, nature and scope of pro-decided issue. Pro-decided issues are not only the issues that have been decided in former litigation, but also necessary to the latter litigation, and usually come from the main facts, sometimes come from the indirect facts and assistant facts. Although in America issue of law can give rise to the effect of preclusion, but it is impossible in china. Also the writer compared the the two conceptions of claim and issue, demonstrated their relations and differences.Part two demonstrate the necessity of effect of pro-decided issue and the inadequacy of the theory of Res judicata,by introduce a caseThrough the comparation about the conception of judicial notice and Res judicata in part three, the writer criticized the uncorrect recognization about the pro-decided issue. It should not be considered on the basis of Res judicata, or on the theory of judicial notice. It is an independant theory system. And there are two standpoints about the nature of the effect. The author believe that the effct of pro-decided issue should not be abosolutely.On the basis of the analysis above, the writer believed that it can arise binding effect when a pro-decided issue should evolve three elements: (1) that the was necessary to the judgment; (2) that the person against whom the estoppel will work had a full and fair opportunity to litigate the issue in the first action; (3) that the issue was actually decided. Some scholar hold the view that the effect of pro-decided issue. should be absolutely, that can not be invalidy, the others' views are opposite. And the author also discussed the problem of procedure protection to the parties. When the latter action evolves different plaintiff or defendant, the binding effect of pro-decided issue will not be so absolutely. The active conditions of the binding effect of pro-decided contain two elements, (1) that the economic interests are almost the same between the two actions; (2) one of the parties claim to use the binding effect of pro-decided issue. And the passive conditions include these aspects, it can be applied when: (1) the burden of proof of two parties are different between the two litigations; (2) probably cause unfairness to nonparties; (3) it can not be appeal; (4) there are changes in the legal climate or in the context , concerns with the passive impact on parties.In part five the writer has pointed out the limitations in the rule of pro-decided issue in detail, and suggested the way to work out these problem. The leaks of the rule include: (1) it does not provide the nature and the scope of the pro-decided issue; (2) it make the binding effect of the pro-decided issue very absurd; (3) it does not provide the procedure that the pro-decided issue give rise to the binding effect. And on these problems the writer suggested to: (1) supplement the provision of pro-decided issue; (2) set up an series rational procedure of issue fixion,and make the judgement more normative; (3) provide the procedure that the pro-decided issue give rise to the binding effect; (4) improve the quality of the judges.