The Procedural Response Of The Transfer Of Subject Matter In Dispute

In the litigation system,it is a common phenomenon for the parties to transfer the subject matter of the claim,such as the subject matter in dispute,and the judicial adjudicator’s response procedures mainly include the party’s constancy doctrine in which the original party continues the litigation and the litigation succession doctrine in which the assignee replaces the litigation..Article 249 of the Interpretation of the Supreme People’s Court on the Application of the Civil Procedure Law of the People’s Republic of China(hereinafter referred to as the Interpretation of the Civil Procedure Law)stipulates that my country has adopted a response based on the principle of constancy of the parties and supplemented by the doctrine of litigation succession model.However,there are often flaws in the application of this rule by practical departments.The main mistakes are ignoring the elements of litigation successionism and inconsistent standards for model selection.To solve related problems,it is necessary to analyze in detail the legal basis of party constancy and litigation successionism and their respective advantages and disadvantages,and to refine the application of relevant rules.This article will be discussed in four parts:The first part is the introduction of the relevant concepts in the transfer of the subject of the dispute and the analysis of the evolution of our country’s legislation.Due to the late start of my country’s civil procedure law,many theoretical concepts have been transplanted from civil law countries such as Germany and Japan.Germany limits the concept of the subject of litigation to "objects in dispute" and disputed civil rights and obligations,which is more in line with judicial practice.Japanese law The conceptual deviations in German law stem from misunderstandings of relevant concepts in German law.The early civil procedure law in our country was inherited from the Soviet law,so it stipulated that the judge could arbitrarily change the parties.This rule was deleted because of its strong authority.Afterwards,my country’s response mode to the transfer of the subject of the dispute is mainly based on the constancy of the parties,which is more in line with the mainstream of civil law countries.The second part is the investigation of the party’s constancyism model and the litigation successionism model.Under the party constancy model,the basis of the transferor’s eligibility as a party is "litigation responsibility",and the transferor’s right of action should be limited.Although the assignee is not a party,it is bound by the res judgment of the effective judgment,except that the object of the dispute is debt.Under the mode of litigation successionism,the theoretical basis for the assignee to become a party is not only the unity of the substantive party and the litigant,but the theoretical basis should be found from the composite perspective of substantive law and procedural law.Both party constancyism and litigation successionism have their own advantages and disadvantages,such as the former fully protects the other party and the latter aims to protect the assignee.The third part is an investigation of the operation of Articles 249 and 250 of the Interpretation of the Civil Procedure Law in my country’s judicial practice.The author concludes that when judges choose the response mode,the standards are not uniform,they ignore the premise of the application of the litigation system,blur the boundary between the procedural response rules and the general succession rules,alienate the procedural response rules into arbitrary party change rules,ignore the transferee protection of interests,etc.The reasons for the flaws are intertwined.Generally speaking,there are such factors as excessive discretionary space given to judges by legislation,lack of systematic connection with other systems,legislative gaps of parties changing rules,and insufficient integration of procedural rules with substantive law.The fourth part is the perfect suggestion to the relevant system of our country.Our country should expand the application of the constancy doctrine of the parties and limit the scope of application of the litigation inheritance doctrine when dealing with the transfer of the subject matter of litigation.At the same time,judges should adhere to the "substantial good faith theory" and focus on protecting the interests of good faith assignees.