On the Normative Application of Basic Thinking of Claim Right in Civil Decision——From the Perspective of the Integration of the Civil Code and the Civil Procedure Law
With the in-depth promotion of German legal methodology in China and the implementation of the civil code,the basic thinking of the right of claim has been extensively studied.However,looking at its promotion process,the focus is still in the case teaching classroom of civil law education,which is not widely used in specific trial procedures.Most of the application of the basis of the right of claim is only reflected in its role as a legal norm,and does not follow the normative order of"lawsuit request → legal norm → essential facts → judgment result",resulting in the fact that the methodological function of bases of the claim rights was not well reflected.This is due to the deep-rooted judgment thinking centered on legal relations and the disconnection between the theory of civil entity and the theory of procedure.In view of the differences in the understanding of some judges on the basis of the right of claim,the problem of competition of the right of claim leads to realistic difficulties such as the obstruction of the connection between substantive law and procedural law,We should give full play to the advantages of legal relationship thinking,balance the conflict between the substantive claim right and the subject matter of the lawsuit to prevent"repeated litigation",and use the objective combination of lawsuits to effectively deal with the competition of claims,so as to strengthen the integration of civil substantive law and civil procedural law and safeguard the fairness of the judgment.
basic thinking of claim rightlegal relationobjective consolidation of litigationconcurrence of claim right
NETL
NSTL
万方数据
