Research On The Identification And Regulation Of Repeated Suit

" Non bis in idem " is always regarded as a basic principle to use in the trial procedure for a long time,such as "violation of the non bis in idem "," it is not non bis in idem" is common in the document of judge,but what is the " non bis in idem " failed to reach a consensus,and the difference in detail with the "ban repeated suit" has no answer.In 2015,the Judicial Interpretation of the Civil Procedure Law issued by the Supreme Court negatively regulated repeated suit for the first time,and clarified its identification criteria.Article 247 of interpretation clarifies the judgment criteria of repeated suit,and stipulates that the current and the latter two lawsuits shall constitute repeated suit when they simultaneously meet the three criteria of "the parties are the same","the object of litigation is the same","the claim is the same",or "the claim of subsequent litigation essentially negates the judgment result of previous litigation".At the same time,this article provides that if the parties have filed a lawsuit repeatedly,the case shall not be accepted.If it has been accepted,the suit shall be rejected.At the same time,prohibition of repeated suit system began to take shape.But this judicial interpretation is not satisfactory.First of all,the interpretation of article 247 is a simple hybrid of the system of prohibition of repeat prosecution and the system of res judicature,which have two different purposes,and extends the scope of application of the prohibition of repeat prosecution until after the court’s decision has taken effect;Secondly,explaining the practice of categorizing " Object of action " and "request for litigation" as constituting elements of repeated prosecutions is also to be considered logically,and even scholars have suggested abolishing the requirement of "litigation".In order to find the problems in the interpretation of this article in the process of judicial application,the author selected nearly a hundred cases from Wolters Kluwer.After analysis,it is found that in practice,the explanation is insufficient and some judges even directly cited but did not analyze.Besides,the definition of the scope of the parties is not clear enough,the theory used to judge whether the subject matter of the lawsuit is the same is not the same,and the treatment of part of the request is different due to the understanding of the subject matter of the lawsuit.The reason is the provision of this article is too abstract,the judgment documents are not rational enough.In order to solve the problem of different understanding and application of law articles in judicial practice,the author puts forward solutions from four perspectives.First of all,we should try our best to unify the understanding of such key words as "same","object of action" and "claim" in the interpretation of article 247.For example,to apply substantially the same criteria to the same parties.The recognition of the object of action is based on the principle that one claim right advocated by the traditional theory of the object of action is one object of action.Part of the request to the parties is based on the principle of negative regulation,and deal with the continuity problem separately.The determination of the results of the refereeing can be conditionally extended to the reasoning part of the refereeing.Secondly,we should strengthen the standardization of judicial cognizance of repeated prosecution.Finally,the way to deal with the repeated prosecution should not be limited to the two ways of not filing the case and rejecting the prosecution.For example,strengthen the examination at the filing stage and cite the Principle of good faith.At the same time,we should establish compulsory counterclaim system to combine the two cases of involvement to prevent the parties from suing again.