On The Identification Of Object Of Action Under The Condition Of Cooperation-competition Of The Claims

Based on the Traditional Theory of Object of Action,it regards that one legal component produces one right of claim as the doctrinal principle of the identification of Object of Action.Therefore,there is a challenging question that how litigants sue and to what extent the objective scope of Force of Matter Adjudged(Res judicata)can be under the condition of the Cooperation-Competition of the Claims(Anspruchskonkurrenz).Because of the diversity and complexity of civil right in the domain of civil substantive law,and that the basic cognitive of the essential issue of claims has not been come to a reasonable consensus in our country,the identification of Object of Action under the condition of the Cooperation-Competition of the Claims has been a lingering theory puzzle,in the meantime,it has been a practical puzzle which lacks of theory guidance in judicial practice.This paper consists of three parts,with nearly 40,000 words,going as follows.Part I ProlegomenaAs the prerequisite discourse of basic context and basic concept of this paper,this part reaches a conclusion about the topic basis and the significance of this paper,respectively in terms of procedural law,substantial law and the interrelation of the above two.In the part with the title of Why Object of Action,it indicates that the Traditional Theory of Object of Action is superior to the Procedure Law Theory and the Substantial Law Theory,in ways of attacking and defensing of the litigants,the seeking of the norms of decision(Entscheidungsnorm)of the judge,litigant qualification,the ascertainment of the objective scope of Force of Matter Adjudged and the interrelated system properties in all areas.Therefore,this paper is based on the Traditional Theory of Object of Action as the basic context and concept.The part with the title of Why the Cooperation-Competition of the Claims aims at stating that it is the logical venation study of the right of claim that we study the right of claim at the source,and then discuss and ascertain the criterion number of the right of claim and the situation and condition when Cooperation-Competition of the Claims occurs,so as to choose an appropriate manner.Furthermore,because Cooperation-Competition of the Claims influences the identification of Object of Action,it is necessary to study the right of claim and Cooperation-Competition of the Claims.The part of"the Scholars of Civil Procedural Law Playing a Positive Role in Promoting,the Coordinated Operation of Substantial Law and Procedural Law" ravels the value of Civil Procedural Law scholars studying on the issue of procedural law according to substantial law through stating the logical relationship between the right of claim and the Object of Action,or the relationship between substantial law and procedural law.Above analysis makes the integrated context and premise of this paper which is how we can identify the Object of Action of Performance when Co-Competition of the Claims occurs under the Traditional Theory of Object of Action.Part Ⅱ the Exploration and the Research of Right of ClaimFirstly,the transformation between the primordially legal relation and the secondarily legal relation ravels that the right of claim suggested in this paper is same as the right of relief,namely secondary right of claim.In the part of "Tracing back to the Source",this paper clarifies the status of right of claim and the relation between it and the just claim by stating the evolution process of the decomposition of actio of Roman Law and the influence of German history on the concept of right of claim,starting from the actio of Roman Law until the time when German Law succeeded to develop Roman law.The part of "the Essence of Right of Claim" further clarifies the status of right of claim and the relation between it and based right.Thereby,it a system of right of claim which I consider is appropriate could be built up via the ascertainment of right of claim and its foundation.Furthermore,this system could help draw a conclusion of Cooperation-Competition of the Claims itself and the attitude to it.Lastly,a type list of Con-Competition of the Claims is aimed to conduce the understanding of Con-Competition of the Claims much more precisely from the view of extension.Part Ⅲ the Identification of Object of ActionBased on the arguments of right of claim and Cooperation-Competition of the Claims in Part II,this part discusses the meaning of right of claim and Co-Competition of the Claims in the area of procedural law,namely the identification of Object of Action.It is mainly about two questions.One is how the litigants sue,the other is the objective scope of Force of Matter Adjudged(Res judicata).From the litigants’point of view,the first question considers the retrieval order of right of claim and the beneficial and suitable way of asserting.From the viewpoint of court of justice,it refers to whether various kinds of claim of litigant to assert is reasonable and how the judge judges.The second question suggests that the reason why the latter action could not be taken is that the lack of right of action leads to the illegality of litigation,instead of the interdiction of Force of Matter Adjudged.In fact,with respect to academic development,academic method is superior to academic conclusion.This paper is not aimed to make a breakthrough but to try my best to explore the creative thinking and find out methods with reasonable argumentation in order to develop the theory of Object of Action.