Following the Chap. 7, this chapter focuses on a new kind of effect of final judgments in Chinese context. It concerns the possible binding effect of the determined intermediate legal relationship of civil judgments which can be handled by the separate intermediate declaratory claim (Zwischenfeststellungsklage). From the perspective of civil substantive law, the judge has the power to actively review the validity of contracts as a civil law defense in the same litigation, which is also the classical understanding of “review of the validity of contracts sua sponte” in the civil law system. However, such power of judicial review should be based on the relevant factual allegations raised by the parties under the doctrine of party presentation (Verhandlungsmaxime). From the perspective of civil procedure law, this review rule can also reflect the coordination between the judge’s authority, i.e. the power and duty of clarification (Aufklärungspflicht), and the parties’ right of disposition regarding changing the subject matter of claims (Streitgegenstand). At the same time, the aforementioned judicial review on the validity of contracts may also affect the court’s determination regarding whether a latter lawsuit is to be identified as relitigation. This chapter recognizes that the disputed issue of the validity of contracts, as the premise of a judgment on performance, is typically included in the res judicata effect of relevant judgments in China. This perspective differs significantly from the counterparts in civil law jurisdictions, which insist that the reasoning part of final judgments has no res judicata effect. Under the two different modes regarding the scope of res judicata effect, namely the expansion and limitation modes, the validity of civil contracts cannot be disputed in the former mode and can rather be disputed again in the latter one respectively. This is related to the differences in understanding the relationship between disputed issues and the claim for performance in these two modes and is also subject to the attitudes of both parties on whether the reasoning part of a previous final judgment should be binding on the latter lawsuit. Considering that China has paid greater attention to the adjudicative techniques regarding narrowing disputed issues in the process of civil proceedings, we should find the mutual basis for both modes of res judicata effect while focusing on the administration of court proceedings and the exercise of judicial clarification. In this way, we may promote the substantialization of sua sponte review of the validity of civil contracts and the extent of procedural safeguard during civil litigation. Furthermore, this chapter intends to construct the effect of sua sponte review of the validity of civil contracts by re-interpreting the rules against relitigation and the elements of Article 247 of the ICPL.

错误:搜索内容不能为空,请输入英文关键词
错误:关键词超出字数限制,请精简
高级检索

Effects of Final Judgments (II): Scope of Res Judicata Effect and Possible Issue Preclusion?

  • Zhixun Cao

摘要

Following the Chap. 7, this chapter focuses on a new kind of effect of final judgments in Chinese context. It concerns the possible binding effect of the determined intermediate legal relationship of civil judgments which can be handled by the separate intermediate declaratory claim (Zwischenfeststellungsklage). From the perspective of civil substantive law, the judge has the power to actively review the validity of contracts as a civil law defense in the same litigation, which is also the classical understanding of “review of the validity of contracts sua sponte” in the civil law system. However, such power of judicial review should be based on the relevant factual allegations raised by the parties under the doctrine of party presentation (Verhandlungsmaxime). From the perspective of civil procedure law, this review rule can also reflect the coordination between the judge’s authority, i.e. the power and duty of clarification (Aufklärungspflicht), and the parties’ right of disposition regarding changing the subject matter of claims (Streitgegenstand). At the same time, the aforementioned judicial review on the validity of contracts may also affect the court’s determination regarding whether a latter lawsuit is to be identified as relitigation. This chapter recognizes that the disputed issue of the validity of contracts, as the premise of a judgment on performance, is typically included in the res judicata effect of relevant judgments in China. This perspective differs significantly from the counterparts in civil law jurisdictions, which insist that the reasoning part of final judgments has no res judicata effect. Under the two different modes regarding the scope of res judicata effect, namely the expansion and limitation modes, the validity of civil contracts cannot be disputed in the former mode and can rather be disputed again in the latter one respectively. This is related to the differences in understanding the relationship between disputed issues and the claim for performance in these two modes and is also subject to the attitudes of both parties on whether the reasoning part of a previous final judgment should be binding on the latter lawsuit. Considering that China has paid greater attention to the adjudicative techniques regarding narrowing disputed issues in the process of civil proceedings, we should find the mutual basis for both modes of res judicata effect while focusing on the administration of court proceedings and the exercise of judicial clarification. In this way, we may promote the substantialization of sua sponte review of the validity of civil contracts and the extent of procedural safeguard during civil litigation. Furthermore, this chapter intends to construct the effect of sua sponte review of the validity of civil contracts by re-interpreting the rules against relitigation and the elements of Article 247 of the ICPL.