4民诉法之诉(09年司考三大本分段学习).doc

4民诉法之诉(09年司考三大本分段学习) The fourth Chapter V. Section 1 the concept and characteristics of litigation The action in civil action refers to the request of the party to protect the civil rights and interests of the court in respect of a particular civil dispute. The characteristics of the lawsuit are as follows: First, proposed by the parties. The cause of the lawsuit is that the dispute between the parties occurred in the civil rights and interests. The party in the dispute thinks that the lawful civil rights and interests have been infringed by the other party, therefore, the litigant of the dispute is the subject of the action. Second, to court. Litigation exists in the litigation system and exists in the judicial activities of the court. For civil disputes, the state has set up administrative mechanisms for mediation, arbitration, litigation and other mechanisms to resolve disputes. The parties have the right of procedural choice in the way of settling disputes, but they can only be called litigation only when they request the court to settle the dispute. Third, litigation is a request. Action is the request of the parties to the court, the request has two meanings, one is asking the court to start the trial process, the parties of the dispute between the trial; second is to ask the court to meet their litigation request, his decision in favour of the protection of civil rights. The former is procedural appeal, and the latter is substantive litigation. The requests of these two meanings exist uniformly in the litigation, and have close ties. Procedural appeal is the means, and the action in the substantive sense is the purpose. Procedural appeal corresponds with the litigants right of prosecution. Once the peoples court has accepted it, the peoples court has established a legal relationship with the parties. In the sense of entity, the partys right of winning the case can be decided by the peoples court if it is confirmed by the peoples court. Second elements of liti