The Identification Of Repeated Prosecution In Civil Litigation

Article 247 of the interpretation of the civil procedure law by the supreme court promulgated in 2015 clearly stipulates that the constitutive elements of the repeated prosecution in China are "the same parties + the same object of actions+ the same or opposite litigation claims ".It must be observed in judicial practice and should not be broken.The recognition of "the same parties" should be considered from both the procedural and the substantive.Both the successors appeared after the end of the oral argument and the subrogation agent belong to "the same parties".The particularity of divorce proceedings determines the expansion of the subjective scope of its res judicata.In this case,the children also fall into the scope of "the same parties".In the identification of the object of action,the"old substantive law theory"is used to better conform to the judicial practice of China.The theory can be used for general type identification.In special cases,the litigation theory is used for specific analysis.In the case of competing claims,the substantive law rules may be applied for interpretation.The parties had to take the litigation risk after exercising the option.They are not allowed to claim other rights.The wrong understanding of the legal relationship led to the defeat of the lawsuit,and the court did not determine the rights and obligations between the parties.The parties can sue for the right legal relationship without being considered as repeat prosecution.When there is no substantive leagal relationship between the parties,they often sue again after losing the case by deliberately changing the cause of the case.At this time,the latter action should be considered as repeated prosecution.For the identification of litigation claims,attention should be paid to the difference between partial requests and claims for subsequent damages.Although the latter also claims twice against the facts of the same case,it is unpredictable for the subsequent damage in the previous complaint.The latter complaint does not constitute a repeat prosecution.On the basis of recognition of the validity of the preliminary decision,the "Referee results"can be expanded.