Research On The Identification Criteria Of Civil Repetitive Litigation

In 2015,the Supreme People’s Court issued the Interpretation 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)as the watershed.Before that,the principle of non bis in idem was used as the basis for application in trial practice,and the application was mostly based on the understanding of judicial personnel.The conditions and effects of application are confusing.Under the joint provisions of Article 247 and 248 of the Judicial Interpretation of the Law of Civil Action,the standard for the identification of civil duplicate action has been made clear.However,with the development of modern economy,people’s awareness of using law to solve various disputes in social life has gradually increased.However,due to the parties’ legal accomplishment,there are still different degrees of differences.In the judicial practice of our country,the frequency of civil repeated litigation has increased compared with before.In addition,the academic understanding of the litigation object is not uniform,the judicial personnel have different understanding of the identification standards,which leads to the relationship between the litigation object and the litigation requests is not very clear,which causes the problems of each different in the process of judicial trial.Therefore,in order to solve the application differences of civil repeated litigation,Based on the analysis of the existing recognition standards,the author tries to reconstruct the recognition standards of civil litigation by perfecting the theoretical basis,modifying legislative provisions and increasing system design.Besides the introduction and conclusion,this paper is divided into four parts: The first part is the analysis of the legislative and judicial status quo of civil repeated litigation in China.The legislative status quo is mainly carried out by the identification standard of Article 247 of the Interpretation of Civil Litigation Law and the provisions outside Regulation 248.The judicial status quo is analyzed from some cases in recent five years,and the identification standard of judgment documents that constitute and do not constitute civil repeated litigation is analyzed respectively.And summarize the status quo of identification in judicial practice;The second part is based on the recognition status of civil repeated action,points out the problems in the recognition process at present,and further excavates the root causes behind them,including the deletion of subjective and objective scope theory restricted by judgement power,the theoretical theory of the litigation object and the concept of the cross between the lawsuit request and the litigation object.The third part compares the regulation of civil duplicate litigation between civil law countries and regions and common law countries,and puts forward four aspects that our country can learn from: the choice of legal provisions,the clarity of time limit,the guidance of judicial precedent,the flexibility of the judge’s processing;The last part makes clear the path selection of civil repeated litigation regulation from three aspects: the theoretical basis,the legislative provision and the system design.The theoretical basis is made clear from three aspects: the establishment of the theory of litigation system,the clarity of the scope and object content of the subject(i.e.the party)covered by judicatory force and the theoretical selection of the subject of litigation.It is suggested to exclude the requirement of the claim in legislation,and learn from the "two elements theory" of civil law countries(regions).The system design is improved from four aspects: perfecting the procedure of combining litigation,introducing the intermediate judgment system,refining the power of interpretation of judges and strengthening the case guidance system.By improving the identification standard of civil duplicate action,we can ensure that the litigants’ case disputes can be solved at one time in the litigation process,realize the principle of litigation economy,and effectively avoid contradictory judgment,which is more conducive to maintaining the authority of justice.