Rethinking and Reconstructing the Way of Exercising the Formative Action Right
A formative lawsuit is based on formative action right,but the exercise of formative action right is not limited to filing a formative lawsuit.For formative action right,fil-ing a lawsuit means an ex ante judicial review of changes in legal relations to achieve clarity,stability and judicial control of changes in legal relations.China's civil legislation has always expressly affirmed the exercise of formative action right by arbitration,but this affirmation is questioned by the majority of academic opinion.There is no prohibition on the exercise of form-ative action right by arbitration in German law.Arbitration can achieve an effect comparable to that of filing a lawsuit and is consistent with the positioning of arbitration as an ADR system.Whether a specific formative action right can be exercised by arbitration is determined by taking into account the formulation of the provisions of the China Civil Code,the arbitrability of the dispute,and the formative action right's compatibility with the characteristics of the arbitration procedure.Whether a creditor's right of avoidance,a right to divide property in divorce,or a right to set aside a corporate resolution can be exercised by arbitration is an issue that should be decided on a case-by-case basis.When the holder of the formative action right is a defendant in a lawsuit,there is a dispute between the"defense theory"and the"counterclaim theory".Ju-dicial interpretations expressly provide that some formative action rights may be exercised by de-fense.There are some problems with the current arguments for both the"defense theory"and the"counterclaim theory".The German law doctrine of"hidden formative judgment"allows for the exercise of a formative action right by defense.Filing a lawsuit,counterclaim and defense are the different forms in which a right holder may request a court to change a civil legal rela-tion,and defense can achieve an effect comparable to that of filing a lawsuit.The recognition of the defense of formative action right is the result of a textual interpretation of the provisions of the China Civil Code.It is consistent with the system logic of civil defense and can facilitate a one-time settlement of disputes.The finding of the defense of formative action right in ratio deci-dendi is also final and an independent formative judgment for counterclaim is not necessary.The exercise of the formative action right by defense should be considered a matter of controversy in the case and should be clarified when necessary,and the defense of formative action right may also be raised on appeal.One would be trapped in the concept of jurisprudence to think that the formative action right can be exercised only by filing a lawsuit but not by arbitration or defense just because it has the name of"action right".Diversification of the exercise of the formative action right can reduce the sources of litigation and promote the diversified settlement of dis-putes.
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维普
