While the parties by fdjerue7eeu


									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
"management." 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'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'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'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: "breach of contract theory", Journal of
China University of Political Science, 1996, p. 132. Our
"Contract Law" 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'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'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'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 "repeated regularly paid in the
case, for payments due after the verdict, you can also bring future
lawsuits to pay." "Macao Civil Procedure
Code" 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
 ?(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:
"New Theory of the Civil Procedure Law", 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'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'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's "Contract Law" Artic
74 provides for revocation of rights of creditors. Creditors, the
debtor entered into with a third person to achieve the transfer of
debtor'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'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'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's
"Code of Civil Procedure," 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: "While the parties described the
modern theory", in "Comparative Law" in
2000 4.
The "v's interests" 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
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
  The second is the premise condition complaints procedure. Complaint
procedures to resolve specific disputes the premise of elements,
including the license of, v.'s interests, its connotation is
that the plaintiff'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'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: "the right to appeal," the Chinese
People'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
  According to China's actual situation, to protect the
legitimate rights of the parties as an element or reasonable. As a
result of China'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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