Research On Pre-determinant Force In Chinese Civil Actions

In theories of traditional civil law era,bounding power for the subsequent action of judicial determines is mainly realized by the rule of res judicata,which has not been established in Chinese law system yet.In our country,binding effect of the former judgment on latter ones is realized by the regulation of pre-determinant force and that of prohibition of repeated prosecution.According to demestic civil procedural law,pre-determined facts are qualified not need to be proved in following suits,only if the parties have sufficient contrary evidences to overturn the finding.The existing rules are not so explicit,thus lead to various understandings among circles of academic and practical,and not yet a consensus has been reached.It is of great significance for the theoretical research.This paper is mainly devoted to clarifying the theoretical bais of pre-determinant force and the perfection of the regulation,basing on demestic legal status and comparison with relevant theroies abroad,and is composed of five parts:The first part is an overview of the theory and status quo,and to make a brief intruduction to the definition and the institutional meanings.The second part are analyses and summaries on issues among legislation and justice,pointing out that only by making certain the theoretical bais of pre-determinant force could figure out the direction to improve the exisiting regulation.The third part is study of comparative law,mainly about the regulaitons on pre-determinant force among both continantal and Anglo-American legal system.Accoding to tradition views,it is prohibited for res judicata to take place among adjudicative reasons,nevertheless scholars have make exploraions in relevent eras to reshape the objective scope of res judicata,and basing on which professor Kouji Shindou proposed the dispute effect theory.The fourth part are theoretical thinkings of pre-determinant force in China.First,it is infeasible for China to chage over to Anglo-American legal system.Second,dispute effect theory does have unique advantages and referential value,but issues could be aroused if it is intruduced.Third,res judicata shares the same leagal source with China,alough it is grounded by its objective scope according to traditional views,this shortage could be overcomed via two feasible paths.Thus it could be seen as the theoretical basis for pre-determinant force in Chinese civil actions.The fifth part are mainly about legislative proposal including stipulating the application scope and legal effect for pre-determinant force,as well as relevent institutional assurances.