scholarly journals Die Übertragbarkeit der deutschen Vollstreckungsgegenklage in das chinesische Zivilprozessrecht

2019 ◽  
Author(s):  
Yin Jin

The action of objecting to a claim that is being enforced (§ 767 ZPO) serves as preventive debtor protection. In German civil procedure law, the provision of this action dates back to the CPO 1877. However, a corresponding action is still lacking in Chinese civil procedure law. Only since 2015 has a debtor been able to assert his substantive objections by way of reminder and immediate complaint before enforcement agencies. However, this form of legal protection does not guarantee a correct decision. Furthermore, this preclusion (see § 767 (2) ZPO) in Chinese law extends to enforceable notarial documents that have no res judicata. In this study, the author therefore proposes implementing the German action of objecting to a claim that is being enforced into Chinese civil procedure law.

Amicus Curiae ◽  
2021 ◽  
Vol 2 (2) ◽  
pp. 188-215
Author(s):  
Richard K Wagner

The volume of disputes heard by United States (US) courts containing a China element continues to be robust even against a backdrop of political rhetoric concerning an economic ‘de-coupling’ of the US and China. These cross-border disputes often involve Chinese parties and special issues, some of which concern Chinese business culture, but many of which involve interpreting questions of Chinese law. How is proving Chinese law accomplished in these cases and how have US courts performed in interpreting Chinese law? This article first discusses the approach to proving Chinese law in US courts. While expert testimony is often submitted and can be valuable to a US court, the applicable US rule offers no standards by which these opinions are to be judged. And, in the China context, without specific guidance, it can be challenging for a judge, unaccustomed with China or the Chinese legal system to determine which version of the law to believe. Moreover, under the applicable rule, the US court can simply ignore competing Chinese law opinions and conduct its own Chinese law legal research, presumably using English language sources. This can lead to interesting interpretations of Chinese law to say the least. The article anchors its discussion in an examination of those recent cases which have interpreted Article 277 of the Civil Procedure Law of the People’s Republic of China. This is the legal provision of Chinese law that can be implicated in certain situations involving cross-border discovery, and there are now numerous Article 277 cases among the reported US decisions. The article analyses Article 277 by placing it within the larger context of Chinese civil procedure and argues that the language used in the provision has a special meaning within Chinese evidence law that has been obscured in those US case decisions interpreting it, leading to erroneous results. The article concludes by offering judges and practitioners some suggestions for interpreting Chinese law in future US cases. Keywords: Chinese law; US courts; Article 277; deposition; cross-border discovery; Hague Evidence Convention; Chinese civil procedure.


Author(s):  
Tetiana Tsuvina

  The article is devoted to the analysis of res judicata as an essential element of the legal certainty. Res judicata is considered to be one of the main guaranties of the legal certainty principle in civil procedure which allows a stability of the court decisions in democratic society and increase the public confidence to judiciary.  The author analyzes national characteristics of the realization of the principle of res judicata in civil procedure of foreign countries. The author explores the preclusion effect of court decisions, highlighting two effects of the res judicata principle: positive and negative one. The negative effect of res judicata is aimed at preventing the re-consideration of identical disputes between the parties if the dispute has already been resolved by the court, in turn, the positive effect of res judicata allows the parties to refer to circumstances that have already been established by a court decision in the dispute between them, in new proceedings, where they are involved. It is concluded that there are significant differences in the understanding of this principle in common law and civil law legal systems. The common law countries have a broad understanding of the res judicata principle, which includes positive and negative effects, and is implemented through such institutions as the claim preclusion and the issue preclusion. Civil law countries follow a narrow approach to understanding of res judicata principle, which is limited only by the negative effect and is reflected in the claim preclusion, which blocks filing an identical claim if there is a final court decision on the dispute between the parties. In common law jurisdiction there is a wider conception of the “claim”, according to which it is understood in the context of entire dispute and comprise all claims based on the legal relationship between the parties, whether or not they were the subject of court proceedings. At the same time in civil law countries identity of the claims can be notified with the help of the triple identity test, which contains the identity of the subject of the claim, the identity of the cause of action and the identity of the parties of the claim.


2021 ◽  
Vol 32 (1) ◽  
pp. 123-135
Author(s):  
Aneta Mendrek ◽  

A different standard of legal protection granted in accelerated proceedings, which includes electronic writ proceedings (EWP), may and should be justified by the nature or subject of a given procedure. However, the separate lex specialis provisions introduced in the proceedings as compared to the solutions of ordinary proceedings may not lead to arbitrary limitations of the right to a court. The EWP, in the form given to it by the amendment of 4 July 2019, has largely been reduced to a sui generis court order for payment procedure, allowing for the pursuit of undisputed pecuniary claims. At the same time, it is still a way to obtain an enforce able title. From this perspective, the different standards introduced by the legislator resulting from the provisions of Art. 505 34 § 1 and 2 and art. 505 37 § 1 and 2 of the Code of Civil Procedure. The article is devoted to the analysis of the above-mentioned regulations and assessing whether the nature or subject of EWP justifies the differences provided for therein.


2019 ◽  
Vol 16 (3) ◽  
pp. 220
Author(s):  
Lisiane Beatriz Fröhlich ◽  
Jonathan Iovane De Lemos

RESUMOO presente estudo tem como objetivo geral compreender em qual dos planos dos atos processuais – existência, validade ou eficácia – reside o defeito que acomete a sentença de mérito prolatada com a preterição do(s) litisconsorte(s) necessário(s) unitário(s). A partir dos resultados obtidos com a pesquisa, constatou-se que, para o alcance de uma conclusão satisfatória a seu respeito, é imprescindível a verificação do momento em que é alegada a preterição do(s) litisconsorte(s) necessário(s) unitário(s). Assim, concluiu-se que, na eventualidade de a alegação ocorrer anteriormente ao trânsito em julgado, o defeito estará situado no plano da validade, tratando-se de uma nulidade absoluta. Por outro lado, após o trânsito em julgado, o que remanesce é o vício no plano da eficácia. Dessa forma, observa-se que a atual legislação processual civil não é incorreta, mas incompleta e carente de precisão. Isso porque, apesar da superlativa importância da definição do momento em que se está analisando o vício, o Código de Processo Civil de 2015 é omisso com relação a esse aspecto, potencializando as dúvidas a respeito do tema. Por fim, verificou-se que, devido à gravidade do defeito que acomete essa sentença – oriunda, sobretudo, da ofensa aos princípios constitucionais –, é possível que qualquer interessado o alegue. Além disso, pelos mesmos motivos, as vias processuais admissíveis para combater esse vício são variadas, podendo ser manejada a ação rescisória, a impugnação ao cumprimento de sentença, a querela nullitatis insanabilis ou, ainda, qualquer outro meio idôneo e compatível com a situação concreta.Palavras-chave: Litisconsórcio necessário unitário. Sentença de mérito. Inexistência. Invalidade. Ineficácia. ABSTRACTThe purpose of the present study is to understand in which of the plans of procedural acts – existence, validity or efficacy – is situated the defect that affects the judgment of merit prolated with the pretermission of the necessary unitary collegitimate. From the results obtained with the research, it was verified that, in order to arrive at a satisfactory conclusion about it, it is essential to verify the moment when is alleged the omission of the necessary unitary collegitimate. Thus, it was concluded that, if the claim occurs before it is formed the res judicata, the defect is situated in the validity plan, being an absolute nullity. On the other hand, after the res judicata is formed, what remains is the inefficacy. Therefore, it was verified that the current civil procedural law is not incorrect, but incomplete and lacking precision. This is because, in spite of the superlative importance of defining which moment the defect is being analyzed, the Brazilian Civil Procedure Code of 2015 do not consider this aspect, potentializing doubts about the issue. Finally, it was discovered that, because of the severity of the defect that affects this veredict – originated, principally, from the offense to the constitutional principles – it is possible that any interested subject of the process can claim it. Besides that, for the same reasons, it is admitted the use of several procedural means to combat this decision, like the rescissory action, the enforcement’s impugnment of the judgment, the querela nullitatis insanabilis or any other suitable procedural means and compatible with the specific situation.Keywords: Necessary unitary joinder of parties. Judgment of merit. Inexistence. Invalidity. Inefficacy.


2008 ◽  
Vol 5 (2) ◽  
Author(s):  
Zhu Xuezhong ◽  
Zhou Yongtao ◽  
Tang Jie

AbstractThe Chinese legal protection and its development in genetic resources are subject to this paper. Since China is one of the countries with rich genetic resources, it is important to apply current legal systems and enact laws or regulations for the protection of intellectual property right in the field of genetic resources. This paper describes the present situation of the Chinese law system including laws and regulations issued by the State Council, Government Office and local governments on protection of intellectual property right in genetic resources and other suggestions being made. At the same time, this paper also discusses the trend of relevant laws and regulations of protection on Chinese genetic resources.


Author(s):  
Ivars Kronis

Rakstā tiek apskatīts jautājums par likumības principa izpausmi un saturu civilprocesā. Pētījumā tiek aplūkoti likumības principa procesuālie un materiāli tiesiskie jautājumi. In the article, the author examines the matter of the expression and content of the principle of legality in civil procedure, more specifically focusing on the procedural and substantive problems of the principle of legality. Civil procedure is universal as a compulsory form of protection of subjective rights or, in other words, civil procedure is a procedure for compulsory exercise of civil rights, which is reduced to a set of norms that determine the type of actions of both existing legal protection institutions and persons who use this protection or are involved in it in any other way. Legality plays an important role in this regard. Legality means a state of life of the society which, firstly, has a legal framework, which is not logically contradictory and which generally meets the objective needs of this society and, secondly, natural and legal persons respect and follow the legal norms adopted. In civil procedure, this is not only a principle, but also one of the aims of legal proceedings. According to its content, the principle of legality includes, firstly, the requirement that the courts apply the norms of the substantive law correctly and carry out procedural actions in accordance with the legal norms; secondly, the requirement that other participants of the procedure comply with the procedural and substantive legal regulation when adjudicating and considering civil cases in court. Thus, the principle of legality includes procedural and substantive components. The aim of the article is, by analysing the moral-legal content of the principle of legality, to evaluate the aspects of its application. Material and methods used in the study for the empirical basis of the research include scientific works and collections of articles, publications in periodicals and primary sources, laws, internet resources, as well as other publicly available information. Analytical, inductive and deductive research methods have been used in the research.


Jurnal Akta ◽  
2020 ◽  
Vol 7 (1) ◽  
pp. 103
Author(s):  
Budisidhabhiprodjo Budisidhabhiprodjo

In its development the business world requires the provision of capital loan services. However, the development of the need for capital in the business world is not balanced with protection for debtors. The existence of Articles 55 and 56 of Act Number 37 of 2004 concerning Bankruptcy and Suspension of Debt Payment Obligations, the position of debtor protection in the bankruptcy undertaken by a separatist creditor against the creditor becomes weak, this is due to the absence of legal remedies that can be done by the dbitur when bankruptcy has been declared effective against him. Therefore the issues that will be discussed in this journal are the legal protection system for debtors in bankruptcy politics, weaknesses in the legal protection system for debtors in bankruptcy political politics, and issues related to finding solutions through reforming the legal protection system for debtors in bankruptcy politics.The purpose of this research is to analyze the legal protection system for debtors in bankruptcy law politics; to analyze the weaknesses of the legal protection system for debtors in bankruptcy law politics; to find a solution through reforming the legal protection system for debtors in bankruptcy law politics.The research method  used in this paper is a normative juridical approach. As for the research that has been done, it can be concluded that the existence of Article 55 and Article 56 of Act Number 37 of 2004 concerning Bankruptcy and Delaying Obligations of Debt Payment has resulted in injustice to debtors in the implementation of bankruptcy against debtors committed by creditors; So it is necessary to reform the implementation of debtor protection in the implementation of bankruptcy to debtors by the creditor by implementing a system of debtor protection in the implementation of bankruptcy to debtors based on Pancasila. Keywords: Debtor; Justice Value; Legal Protection; Legal Politics; Bankruptcy.


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