Research On The Procedure Of Handling As A Separate Case In Civil Litigation

Handling as a separate case is a professional vocabulary from the field of criminal procedure law to the field of civil procedure law.Based on it,the existing judicial practice forms a so-called judgment procedure of handling as a separate case in civil litigation,which has been recognized from the bottom up.In the long-term and extensive application,the practical circle explains the meaning of handling as a separate case by "the thoery of avoiding the judgement".In terms of its nature,handling as a separate case belongs to the court’s procedural disposition,procedural command of the proceedings and the segmentation behavior of litigation claims or streitstoff.Based on the empirical study of the procedure of handling as a separate case in civil litigation,the application amount of handling as a separate case is relatively large in recent years,but there is a trend of decreasing year by year.Most of handling as a separate case exist in the fact and reason sections of the judgments,and the law term forms are very diverse.Through the typization,the objects of handling as a separate case include actions,objects of action,claims,refutations,partial claims and corpores,and the applicable reasons include the difference of the legal relationship,the obstruction of the interests of the outsider,the uncertainty,the claim that cannot be realized obviously,the failure of the counterclaim and the consent of the parties.In practice,handling as a separate case is in varied forms about the judgment terms and procedural elements,with violating the principle of prohibiting judicial silence,principle of equality of weapons and the theories of litigation affiliation and res judicata.The application dilemma comes from the lag of legislation,the thinking orientation of substantive justice,the drive of utilitarian weighing by judges and the influence of the avoidance function in handling as a separate case.The legislator shall clarify and rationalize the applicable standards for handling as a separate case on the basis of clarifying the theory of litigation separation,construct mandatory standards and discretionary standards,and set up special standards for different objects.The formulation of the specific procedures for handling as a separate case should not be ignored,and it is appropriate to regulate the starting conditions,procedure hearing,document form,legal effect,relief ways and other aspects of handling as a separate case,so as to give full play to its function of solving the litigation delay to the greatest extent.In order to supplement the function of handling as a separate case and prevent the Inappropriateness of its application,the legislators also need to improve the relevant auxiliary system.