| Arbitrary Litigation Undertaking is a special case of Standing to Sue,and it’s judicial application should be limited to a certain reasonable range.This issue is theoretically called the "the Permissibility of Arbitrary Litigation Undertaking".In terms of norms and judicial practice,although China currently does not have a general standard for accepting Arbitrary Litigation Undertaking,some norms have actually implemented the behavioral pattern of Arbitrary Litigation Undertaking.Based on the analysis of Chinese norms and cases,the issue of the Permissibility of Arbitrary Litigation Undertaking can be concretized into three sub-questions: First,how does the Authorizer make the authorization decision? Second,how does the content and method of authorization affect the application of Arbitrary Litigation Undertaking? Third,who can be the Authorized Person?Regarding the Permissibility of Arbitrary Litigation Undertaking,Germany,Japan,and China have a number of theories.In terms of extraterritorial doctrine,the current general theory in Germany and Chinese Taiwan does not adopt the method of typological analysis.Instead,it uses a single standard to summarize the Permissibility of Arbitrary Litigation Undertaking,that the application of Arbitrary Litigation Undertaking should be limited in the cases in which the Authorized Person has legal interest in the litigation.Some Japanese theories also adopt this view.Howevert there are also a number of scholars in Japanese who adopt the method of typological analysis from internal perspective,which analyzes the Permissibility of Arbitrary Litigation Undertaking based on the three elements of Arbitrary Litigation Undertaking,such as "the Authorizers’ benefits and status","the Authorized Person’s benefit" and "the Authorization behavior".Chinese scholars generally use the method of typological analysis to analyze the Permissibility of Arbitrary Litigation Undertaking.The four classifications currently existing in China can be roughly classified into two categories.One is to observe Arbitrary Litigation Undertaking from external perspective;the other is to observe Arbitrary Litigation Undertaking from internal perspective.The classification of Arbitrary Litigation Undertaking from external perspective is insufficient in terms of theoretical explanatory power.Therefore,the method of typological analysis of the Permissibility of Arbitrary Litigation Undertaking should be in the internal perspective.In the aforementioned theories of typological analysis,the classifications of Arbitrary Litigation Undertaking in Chinese and Japanese are all single-dimensional analysis.Even if accurate analysis in that dimension can be obtained,it is not enough to make a comprehensive analysis of the Permissibility of Arbitrary Litigation Undertakin.Therefore,only by starting from multiple dimensions at the same time,and connecting the analysis of each dimension,can we make a more complete observation and evaluation of the Permissibility of Arbitrary Litigation Undertaking.The reason why the existing researches are limited to a single dimension is that the existing researches do not pay attention to the relationship between the constituent elements of Arbitrary Litigation Undertaking.Therefore,the determination of the dimensions of observation needs to be based on the constituent elements of Arbitrary Litigation Undertaking.The behavior model of Arbitrary Litigation Undertaking has three elements: the Authorizer,Authorization behavior and the Authorized Person.Among them,the identity of the Authorizer determines whether the Authorizer can authorize and how to authorize;and different Authorization Content has different requirements for the qualification of the Authorized Person.Based on the aforementioned constituent elements,the typological analysis is carried out from the dimensions of the Authorizer,Authorization behavior and the Authorized Person.The three sub-problems of the Permissibility of Arbitrary Litigation Undertaking can be analyzed in a targeted manner,and the analysis fits well with the existing problems in Chinese norms and practice. |
