| Repeated litigation is common in civil litigation in China.This kind of action will not only lead to the waste of judicial resources,but also shake the stability of judgment and damage the judicial credibility.Because the current legal norms do not stipulate the repetitive litigation,the theoretical and practical circles of civil procedure have been debating the repeated litigation.In 2015,article 247 of interpretation of the civil procedure law first clarified the elements of repeated prosecution,which provided a unified standard for the court to identify repeated prosecution in form.Through the analysis of the relevant documents of repeated prosecution after 2015,it is found that in practice,different courts have different standards for identification of repeated litigation,and there are different ways to understand and apply the status of parties,litigation requests,litigation objects and adjudication results.Among many problems,the most controversial is the determination of the subject matter of the lawsuit.As the core of the whole civil procedure,the object of action is related to the identification of repeated prosecution.Therefore,only after defining the concept and nature of the subject matter of action can we judge whether the post litigation belongs to the repetitive litigation.The lawsuit request is one of the elements to identify the repeated prosecution.It is the concrete of the claim based on the object of the lawsuit.The court should make a judgment within the scope of the litigant’s claim,and should not equate the claim with the subject matter of the lawsuit.Based on the party doctrine,the scope of the judgment results can be extended to the reason of judgment beyond the main text of the judgment,but not all the reasons have "blocking effect",which is limited to the parts of the core judgment reasons that are fully debated by the parties and reviewed by the court.This paper mainly uses case analysis and literature analysis,the full text is divided into four parts: introduction,case and dispute focus induction,legal analysis,evaluation and suggestions.In addition to the introduction,the main contents of this paper are as follows:The first chapter is the introduction of cases and the summary of the focus of disputes.This part selects three cases,namely "Liuzhou Jianyu Real Estate Development Co.,Ltd.(hereinafter referred to as Jianyu company),Liuzhou City Investment and Construction Development Co.,Ltd.(hereinafter referred to as" the city investment company ")contract dispute case.Through the analysis of each case,the paper extracts the typification problems behind it and the reflected phenomenon of legal application.The author also summarizes the focus of the dispute.First,if there is no change in other factors,whether the post litigation filed on part of the claim is a repeated prosecution after the split of the claim;the second is the identification of the identity of the object of the litigation before and after the lawsuit;the third is the judgment that the later litigation request denies the result of the previous litigation.The second chapter is mainly about the above three issues.Through case study and theoretical analysis,the author believes that,based on the same dispute,the parties may separate the claim and Sue in different stages,which is not strictly prohibited or allowed.The "limit negation" theory can be adopted,and whether the litigant’s request for separation has a reasonable reason to determine whether the post litigation can be filed.According to the current situation of legislation and judicial practice in China,the judgment of the subject matter of civil procedure should be based on the old substantive law.As for the validity dimension of the judgment result,it is generally attributed to the main text of the judgment in judicial practice.However,if the parties have fully verified and debated the dispute points outside the subject matter of the lawsuit in the trial,and the content of the dispute has been reviewed and determined by the court,then the dispute can be regarded as the basis for the trial of the later litigation court,and the parties shall not conduct any further dispute.The third chapter is mainly about the analysis of the causes of repeated prosecution in judicial practice,and puts forward legislative and judicial suggestions.Under the registration system,the entry threshold of cases is reduced,which is contradictory with the provisions of article 247 of interpretation of Civil Procedure Law on repeated litigation.Therefore,the improvement of filing and pre trial procedures should be promoted.The recognition of repeated litigation involves the theoretical concepts of "the subject of litigation" and "competing for point effect".It is separated from judicial practice,and it also needs to be changed in legislation or reflected in the guiding cases.In order to further regulate the repeated prosecution,on the one hand,we can strengthen the case review and the information sharing between the court system,on the other hand,we should refine the judge’s right to explain,which is not only conducive to the protection of the rights of the parties,but also improve the judicial efficiency and the stability of the procedure. |
