The Studying Of Civil Partial Claim

A civil partial claim is also being regarded as'a request litigation'in Taiwan. In short, a partial claim is that the plaintiff has already lodged a complaint on part of the claim and the court has made the relative decision as well. Afterwards, the plaintiff lodges another complaint on the rest of the claim. Generally speaking, a partial claim exists mainly in Civil Procedural Law in civil law countries while in Common Law System only America mention a partial claim only if the party agreed on the partial claim. Moreover there are some typical examples such as the ostensive recover regime in Japan and ostensive and implied regime in Germany. However, there is no information about design for the partial claim in China. This paper would like to introduce the path toward self-actualization on partial claim based on the theory on Civil Law System and the fact of China. There would be four parts to talk about the topic on partial claim in China.The first part introduces the definition of the partial claim with some examples, at the same time, I will analyze these examples. Then distinguish the partial claim from some diffluent systems such as increasing lawsuit, double complaint and underdeveloped damage, etc. It helps you better understand the definition of the partial claim.The second part is to assess the foundation that could make partial claim in legislation with assess on the combination of the value of partial claim and the objective of civil action as its foundation. Afterwards, it analyses Res judicative theory, theory on subject matters of an action and interruption of prescription theory, etc. All of these evidences could provide the theory foundation of partial claim.The third part is mainly about position and relative theories of America in Common Law System and Japan and Germany in Civil Law System. Because of the difference in history and law culture, America in Common Law System adopts complete prohibition on partial claim. Even if it is mentioned, when there are some rest claim found on the docket in future, the court will adjudge based on all the possible claims except the situation that the party has already made decision on partial claim. There are three theories in Japan and Germany in Civil Law System: Affirmative theory, Restrictive theory and Denial theory. Nonetheless Japan, Germany and repudiation prefer Restrictive theory. In general, the limit condition on partial claim in Japan is much stricter than that of Germany. Finally, the paper will assess the position on partial claim and the advantage and disadvantage of all theories so that we could explicitly understand the direction of the partial claim theory.The final part firstly makes sure that the guiding ideology of partial claim. It is the effectiveness to solve the disputes and theory to build harmonious socialist society. In the concepts of guidance, based on the new cases in domestic judicial practice, it proves the legitimacy of localization of the partial claim from the concepts such as litigation costs, guarantee of plaintiff's jus despondent and the balance of plaintiff and defendant's interest, etc. Finally, from the fully express of respective functions of plaintiff, defendant and court, based on the sufficient balance of all parts'interest, we introduce the specific way of the partial claim.