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While the parties ? ? 1, when the concept and role of parties ?(A) While the concept of party While the parties refer to the parties on specific action, be eligible to own name as plaintiff or the defendant, and therefore bound by the ruling party to the case, also known as the proper party. Proper party to prosecute or responding only to the name of the implementation of their action, and be bound by the present case, the proceedings have substantive significance. This in its own name for the party and be bound by the present case, the power, called the suit or action to implement the right to act right. The plaintiff has the legal right to implement, as a legitimate plaintiff; have the right of action to implement the accused, known as the proper defendant. While the concept of the parties with the corresponding non-legitimate party, it is not the subject of litigation between the parties with a particular fact or legal relationship, rights and obligations is not the main subject of the litigation, the litigation on the subject did not suit the implementation of the right. ?(B) the proper role of parties The reason why the concept in theory than in the party put forward the concept of the legitimate parties, because parties have a legitimate role in the following areas. 1 ª± exclude inappropriate parties, to avoid the occurrence of frivolous proceedings. 2 ª± to expand the scope of the judicial settlement of disputes. Second, determine the proper standard of parties In general, it should be under the circumstances of the case to determine who is the legitimate party case. However, the procedural law scholars in order to facilitate the identification of legal practice to find ways to determine the proper parties to put forward the general standard. The implementation of the right of action is the most important method of identification, whether the parties decide to implement the right actions, Zeyi management basis. Recently, in order to appeal the interests of right-based theory of action to implement the growing prosperity. ?(A) management Management and action to implement the concept of the right first proposed by German scholars. Substantive law on the subject of rights disputes on the subject of property rights as the general enjoyment of the management or disposition, therefore, the property right of action to implement the basis of the proceedings is &quot;management.&quot; The main subject of civil proceedings in respect of rights and obligations involved in litigation, can become a legitimate party, with the implementation of the right of action. Germany, the end of the common law, the right of action to implement the concept, but also for the third substantive law for the rights of others or the right to conduct litigation legal relations of the occasion, it became the legal relationship established outside third party to become the standard due . However, the implementation of the management rights as the basis for action, has great limitations. Because it does not apply to the action of confirmation. The action of confirmation whether the action to implement the right of the plaintiff, should the request of the plaintiff&#39;s rights or legal relations to confirm whether there is a legal interest to decide. V. formed, the parties whether eligibility should normally be determined under the law. Provisions in the law does not only have the right to form the right person or on the formation of a management talent is just the plaintiff, and by the formation of rights or legal relations are closely related to man-made legitimate defendant. Management theory can not generally applicable to all types of litigation, the interests of complaint doctrine to some extent make up for this flaw. ?(B) the interests of v. 1 ª± v. A Summary of the interests of V. the interests of the interests of judicial relief the plaintiff requests that the implementation of the litigation interests. This controversial rights or interests with the interests of different entities, but also with the different interests of the plaintiff&#39;s favor. A plaintiff that their interests should be protected by law in danger or uncomfortable, they will sue and seek a favorable ruling on their own, the plaintiffs ask the court to protect the interests of this interest is the appeal. V. the interests of management theory and the difference is that, regardless of the parties request the court on whether the rights recognized and protected right to manage, as long as the interests of appeal, the party is still considered a legitimate party, and the defense can prove the facts. Some scholars even believe that the interests of complaints start a claim, the key to enter the trial proceedings, trial proceedings is created through the norms of substantive law important beginning this process. Because the substantive law in the absence of clear norms to be found, the parties have raised the case of a claim, the plaintiff in the prosecution acknowledged that there are complaints in the interests of the cases on trial by the court provided the conditions created entity specification. 2 ª± different types of action in the interests of the complaint V. There are three types, namely, payment of the appeal, confirmed the appeal and change the appeal. V. on the type of complaint is not the same interests. ?(1) payment claim of appeal in the interests of the Payment claim and the settlement of the existence of the payment claim has expired (that is payment claim) the interests of action can easily be identified. However, there are some special situations to note: individual businesses, Farm Households, partner organizations, staff employed under the contract of employment during the production and business activities cause damage to another, the employer is a legitimate party; individual business to business license for the legitimate owners of registered parties; legal person or other organization to be registered but have not registered with the corporate or other organizations that engage in civil activities on behalf of, or unauthorized use of a legal person, on behalf of other organizations in civil activities, legal person or other organization to continue after the termination of civil activities on its behalf, and to direct responsibility of man-made just party; enterprise legal person without liquidation Jibei withdrawn and clearing organizations, to the clearing organization for the proper party; no clearing organization to revoke the decision making body for the proper parties; dispute between the parties by the people&#39;s mediation committee for mediation or arbitration of labor disputes by the labor dispute arbitration committee, the parties refuses to accept arbitration or mediation proceedings to the court, and should the other party as the proper defendant. Payment claim of appeal to the interests of the problem is the future payment claim, payment of the appeal acts, especially not as a claim payment claim to identify the interests of action. Future payment claim, is not expired or the conditions do not claim success, creditors requires the debtor to fulfill payment obligations due to an action. Future payments of the main characteristics of appeal, legally defined the necessary pre-request is filed in the future the conditions for payment of the appeal. The need for pre-litigation and should have been legally recognized, the proceedings of talent can be recognized as having the interests of complaints in order to become a legitimate party. At this point, even though they oppose the payment or advance payment of the obligations of the plaintiff there, the plaintiff filed the complaint that will benefit the interests of action remain unaffected. To sum up, the future may bring the case of payment of the appeal are: First, the debtor fails to perform multiple stages of debt payment has been due, the creditors according to its due debts the defendant is not the case, could reasonably infer the defendant on the future can not pay the debt maturity schedule can be won through litigation judgments, the creditor can ask the court after the expiration of the enforcement system. This is the theory of anticipatory breach of the Civil Code set. Anticipatory breach of contract theory, according to the words and deeds can be assumed that the debtor will not fulfill its potential, you can request that the necessary pre-existence. Wang Liming: &quot;breach of contract theory&quot;, Journal of China University of Political Science, 1996, p. 132. Our &quot;Contract Law&quot; Section 166 and 167 pairs of sales contract makes provision for anticipatory breach. Under such circumstances, the creditor need not prove the existence of subjective fault the other party, as long as can reasonably infer the other party of the future debt can not be fulfilled, that its presence can benefit the interests of the Action of the complaint. But the only reason the defendant could deteriorate in the property filed in the future payment of the appeal, the request still does not constitute the interests of future payment claim. Germany, France, Japan and Taiwan of China&#39;s civil law, the obligation of the property of the state against the possible deterioration of the situation, with special provisional seizure or provisional implementation of the system, while China&#39;s civil law system to relief through the preservation of property the creditor. Second, creditors in the payment due date need to obtain the debtor&#39;s implementation o the basis for the benefit of creditors or will cause undue damage, therefore, should be allowed to bring future benefit of creditors appeal. For example, the court the specific circumstances of the case, before the end of the lease relationship, allowing the lessor sued the lessee requests to move out of housing to the end of the lease relationship, so that the lessor was under implementation, application for enforcement. German Code of Civil Procedure Article 257 provides that the plaintiff claims payment of the debt is not treated, or request to move out of the land, or place a request to move out of illegal residence, if the request is limited to a certain time, the plaintiff may make future payments or eviction proceedings. Article 258 of the Act establishes the repeated payment of the interest of the Action of the complaint that &quot;repeated regularly paid in the case, for payments due after the verdict, you can also bring future lawsuits to pay.&quot; &quot;Macao Civil Procedure Code&quot; Article 393, paragraph 2, have similar provisions. Not as a payment claim is to ask the court to sentence the defendant to stop or prohibit the unlawful proceedings. The initiation of such proceedings, the existence of violations of state and will remain there to continue against the possibility of the premise. This action has the right to prevent infringement of the function. Modern public welfare litigation, extensive use of the preventive remedies. Of such a payment claim is not as long as there is still against the state and in the future to continue against possible complaints should be considered to have the interests of the relevant parties are just party. ?(2) to confirm the interest of Action of the v. V. the action of confirmation to confirm the interest of that interest. Confirmation of their request as long as the plaintiff claims an interest in legal relations, shall be due the plaintiff; in the relative positions of the plaintiff, the defendant shall be justified. (Taiwan) Wang B, Yang Jianhua, Zheng Jian was: &quot;New Theory of the Civil Procedure Law&quot;, Harvard Business School Press, 1979 edition, p. 48 ~ 51. V. the action of confirmation the interests of the following characteristics: First, so long as the benefits are confirmed the existence of proper party also been identified. Second, the plaintiff as the main entity-relationship does not exist legal stability, or the presence of uncertainty may damage the interests of the subject of the plaintiff, the plaintiff, it has confirmed the sentence by eliminating the need for stability or uncertain reasons, it is confirmed the basic elements of interest. Third, the recognition of complaint, both filed separate complaints can also be with the formation or the payment of the consolidated complaint filed, in most cases, the complaints need to form a merger or payment claim filed. For example, the plaintiff requested to confirm the relationship of adoption fails, can request the return of property. However, payment can be directly filed the complaint and the parties only management procedure, it should bring benefits to the parties of the complaint. 3 ª± v. the action of the formation of the interests of Action of the formation of two, one is the formation of the substantive law complaints, one is procedural law on the formation of the complaint. Substantive law on the formation of a divorce complaint resolution and cancellation of company litigation. In such proceedings, the effect is the formation of the content of substantive law. Procedure on the formation of v belong to exclude the effect of litigation on procedural law. Retrial, set aside an arbitration award, the debtor Objection, appeal and other third objection is the procedural law on the formation of the appeal. The implementation of such proceedings will have the name of execution denied, declaring null and void the previous implementation of the program&#39;s results and other procedural law. The formation of substantive law and procedural law on the formation of Appeal of appeal although the complaint with the formation, but results in the formation are very different. Substantive law on the formation of appeal&#39;s decision not only did not exist between the parties to create legal status, and the scope of the formation of subjective judgments is not only limited to the parties, can produce many outsider raises the formation of a broad effect. For example, the revocation of the resolution of litigation the company, when the court ruling in favor of the plaintiff, the company announced the resolution was revoked, the revocation of the effect of not acting on the plaintiff and the companies, but the parties have a certain relationship with the person would have to admit that effect. While the action of the formation of the determination of the parties has its particularity. Have formed the main body of the right to not be limited to a particular party, but also a legal right to give it form a particular class of persons or not a particular person. For example, China&#39;s &quot;Contract Law&quot; Artic 74 provides for revocation of rights of creditors. Creditors, the debtor entered into with a third person to achieve the transfer of debtor&#39;s property for the purpose of contract, fraud victims, causing damage to its interests, may file the complaint form, ask the court to revoke the debtor&#39;s fraud victims and others signed the contract. Substantive law or procedural law to determine the formation of the right to exist and have the necessary relief, the plaintiff can claim the existence of the formation of interest and the formation of the complaints filed. However, when the facts have changed, the plaintiffs are likely to lose their interests. For example, after the dissolution of the company has set an invalid action, the plaintiff&#39;s interests not to speak of the appeal. However, after the effect between the two proceedings, if their formation at different times, or the effects themselves may have differences, the interests of its appeal can be re-approved. For example, under China&#39;s &quot;Code of Civil Procedure,&quot; the provisions of article 111, sentences are not allowed after the commencement of proceedings for divorce after 6 months, does not prohibit the parties to the same reason and evidence and then bring the complaint for divorce, is an example. Xiao Jianhua: &quot;While the parties described the modern theory&quot;, in &quot;Comparative Law&quot; in 2000 4. The &quot;v&#39;s interests&quot; as the basis for action to implement the right, in fact expanded the proper party basis. Of the parties to establish proper standards of justice is an important role is to determine the proper practice of the parties to find a general method. Most cases, whether the interest is based on complaints or the management of the doctrine, whether the parties the right of the main proceedings should be implemented to the relevant provisions of substantive law as the basis for judging. Third, the lack of proper parties to the litigation consequences of the Elements Proper party (just party) is a prerequisite for successful parties, is one of the vital right of appeal. Subject did not exercise the right to appeal, the right to appeal that can not achieve any purpose and effect. Right of appeal according to different theories, the lack of proper elements of the parties, the court referees in different ways. Specific right of appeal said the civil rights a prerequisite for the existence of three types, that satisfy these three conditions, there is the existence of the right to appeal and the right to appeal the parties should be satisfied. Each category has a separate legal meaning, that is, the existence of its conditions, would lead to different consequences of procedural law. The first element is the action element, it includes some form of litigation for the parties have legal capacity for rights, the court has jurisdiction and so on. With these elements, you can make the case into the physical proceedings, the lack of any one element, it should stop the proceedings, not for physical settlement and termination procedures. The second is the premise condition complaints procedure. Complaint procedures to resolve specific disputes the premise of elements, including the license of, v.&#39;s interests, its connotation is that the plaintiff&#39;s right to protect the interests and rights of protection necessary. Only in the procedural prerequisite, the court can make on the real benefit of legal relations between the ruling party; the absence of elements of these premises, the court dismissed the lawsuit. The third element is the premise condition complaints entities, also known as the right to protect the element, its content is the plaintiff&#39;s claim of private law rights and obligations exist or does not exist, the sum of the performance of the civil rights, whether these civil rights issues, should be in accordance with the norms of civil law to resolve. Elements do not have the physical premises, the court may dismiss the request for protection of their rights, can be grounds to appeal verdict unfounded claims rejected. [Su] Gu Er Weiqi: &quot;the right to appeal,&quot; the Chinese People&#39;s University Press, 1958 edition, 16 ~ 17. According to the specific right to appeal that action element in the form of elements, right elements and procedures to protect the premise condition for the material element, the lack of derivative litigation should be based on the complaint of the plaintiff is not illegal, the court rejected; the lack of protection of rights and procedures for elements of the premise condition, then that the complaint should be no reason for the order rejected. Present case, said the request was that the purpose of civil litigation system, mainly to resolve civil disputes, to determine the procedural rights and obligations of the parties request for the present case, therefore (whether successful or unsuccessful decision ruling) shall be the right of the right to appeal. Court plaintiff winning or losing the case the judge, the plaintiffs have the right to appeal were admitted there. Present case, the request said that the differences with the specific right of appeal is that the specific right of appeal that emphasizes the physical element v that won the right to appeal or not may determine the presence or absence. Proper party to be treated as an element of rights protection, lack of proper party to prosecute the Elements, no reason to appeal the court ruling will be dismissed. Present case, claim that the right to appeal that the proper party is the existence of elements, the lack of this element, its action is not established, the Court of Appeal should be illegal for the reason dismissed the action. Japanese and German civil law does not specify how the parties do not deal with the problem. Scholars claim is not very consistent. Some people think that is right proper party to protect elements, some people think that it belongs to the Essential Elements action. Chinese scholars have different views. Is generally believed that proper party rights are protected elements, some scholars believe that proper party right of appeal are the elements of procedural meaning. Proper party, and shall have the right to appeal procedural sense, the right to appeal and physical sense has nothing to do, if there is a lack of proper party, should be established and determined action is not dismissed the action. The proper party or as an element of legal protection of the rights established elements of advantages and disadvantages. The proper party as the Essential Elements action perspective, the advantage of not only confirmed the proper party is the substantive law on the basis of management powers, also take care of Procedural factors impact on the proper party. The beginning of the review petition in the court, the plaintiff or the defendant found that the parties can not be justified, can the court rejected their suit, the economy is conducive to litigation. However, it said, there are disadvantages: not yet entered the court in the litigation stage of the debate before the investigation and the court, the parties whether eligibility, generally can not be confirmed. It is only through the courts to judge the parties debate whether to establish a cause of action. At the same time, this approach did not address substantive issues, disputes not resolved; the parties may also be prosecuted, the defendant was again indicted in the state at any time. The protection of the rights proper party classified elements, although the entity to the referee, but did not solve the real problem. Because the real subject of rights or legal relations disputes between unresolved. Not even the action on the economy. In particular, the review discovered only through the process the parties do not, and if you have the right to protection as elements of a hearing, make a solid decision, will result in unnecessary and complicated. According to China&#39;s actual situation, to protect the legitimate rights of the parties as an element or reasonable. As a result of China&#39;s civil action is not a party to prosecute the beginning, but after review by the courts to be admissible. If the nature of the proper party attributable to the establishment of elements of action, will lead to sue to resolve the dispute can not enter the proceedings. If the parties as a legitimate right to protect the elements, the legitimate question whether the parties will not be a court review process in the receiving object. Whether the successful party is the party thing, but the parties have the right to use the court, the court can not refuse to provide judicial relief. Of course, the court in the prosecution phase, or pre-trial preparation phase the parties from the process simply can not be found on legitimate party, should be flexible, according to the situation in the following ways: First, determine replacement of non-legitimate party; Second, determine inadmissible; Third, the court rejected prosecution. ?
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