On The Theory of Issue Preclusion Validity in Civil Litigation
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摘要: 所谓争点效,是指在前诉中被双方当事人作为主要争点予以争执,而且法院也对该争点进行了审理并作出判断,当同一争点作为主要的先决问题出现在其它后诉请求的审理中时,前诉法院对于该争点作出的判断产生的通用力。依据这种争点效的作用,后诉当事人不能提出违反该判断的主张及举证,同时后诉法院也不能作出与该判断相矛盾的判断。其理论基础在于诚实信用原则和公平原则。它具有理论和实践两个层面的重要功能。我国应当引入争点效理论。Abstract: Issue preclusion validity is an effect in general use created in the former litigation court's judgement to the issue, which was once argued mainly by both parties in the former litigation, and was also tried and judged by the court, when the same issue as the main primarily settled question appears in the latter trial for the other claims. According to the role of the issue preclusion validity, the party in the latter litigation can't put forward the assertion and evidence that violates this judgement, and the latter court's judgement can't contradict it. Its theoretical basis is credit and fairness doctrine. It has important theoretical and practical function. China should bring in the theory of the issue preclusion validity.
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Key words:
- civil litigation /
- issue preclusion validity /
- Res judicata /
- litigation object
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