Study On The Effect Of Settlement Agreement

As a dispute resolution mechanism,settlement not only needs to coordinate with civil litigation in the procedural law,but also clarify the relationship between the settlement agreement and the original legal relationship in the civil law.Settlement is common used in judicial practice,but due to the absence of legislation,the effect of settlement is not clear,the purpose of settlement cannot be realized.At present,the academic research on the effect of civil law also lacks depth,and is limited to the factual description and reference of extraterritorial law,committed to perfecting the rules of settlement effect at the conceptual level.However,there are many forms of settlement,refine the settlement effect in the settlement form and present with the concepts of definite effect,confirmation effect,and creation effect,these concepts too high generality to be used in the judicial practice.Therefore,this article takes the realization of the purpose of settlement as the breakthrough point,extracts the core of the issue of the effect of settlement on the basic legal relationship,shifts from conceptual theory to type theory,and perfects the rules of settlement effect by constructing a system of settlement effect types.The first chapter of this article based on the status quo of legislation and theoretical research,put forward the effect issue of the settlement agreement.The second chapter takes the realization of the purpose of settlement as the perspective,and clarifies the concept of settlement by comparing the differences of unilateral juristic acts such as exemption.Then analyze the the feasibility of the procedural approach and the substantive approach to achieve the purpose of settlement in comparative law.Firstly,it analyzes the procedural effect of the settlement agreement,points out the difference in effect between litigation settlement and private settlement,and discusses the effect of the procedural effect of private settlements concluded in different litigation periods.Secondly,it analyzes the existing theories of the private effect of settlement,and points out that the connotations of the confirmation effect and creation effect are ambiguous,and the definite effect is broader,and the application significance of the two is limited.Based on the shortcomings of existing theories,the research on the effect of settlement should turn to type research.The third chapter adopts a typed perspective to perfect the rules of settlement effect.First,focus on the relationship between the settlement and the basic legal relationship to construct a type system of settlement effect.According to the subject matter of the dispute,the confirmation-type-settlement arises from ownership of rights disputes and the payment-type-settlement arises from debt disputes which are further divided into elimination-type-settlements and coexistence-type-settlement according to the effect of new debts on old debts,through the settlement and substituted contract,facultas alternativa,and other related systems.Second,combining the rules established by judicial practice,considering the balance of interests between creditors and debtors,and proposing specific rules for determining the effect of settlements.The fourth chapter analyzes the barrier of validity to the effect of the settlement agreement.Firstly,judge the influence of the invalidity of the basic legal relationship on the settlement based on the independence of the settlement.Secondly,analyze the applicable rules of misunderstanding according to the purpose of the settlement,distinguish the errors of the settlement object and the basic errors,and integrate the general theory of comparative law into the legal system.