Summary of the case: Li and Liu had a loan relationship of 1 million yuan. Because the debtor Liu failed to repay the loan as agreed by both parties, Li filed a lawsuit with the court, requesting Liu to repay the loan principal of 1 million yuan and interest. The court ruled in f

Summary of the case

Li and Liu had a loan relationship of 1 million yuan. Because the debtor Liu failed to repay the loan as agreed by both parties, Li filed a lawsuit with the court, requesting Liu to repay the loan principal of 1 million yuan and interest. The court ruled in favor of Li’s claim. After the judgment came into effect, Liu died of illness. Li then sued the defendant Liu's son Liu (heir) and his wife Wang to file a lawsuit on behalf of the defendant, requesting Liu and Wang to bear responsibility for the repayment of the principal and interest of the loan of 1 million yuan owed by Liu. Liu and Wang argued that the same claim had already been tried and judged by the court, and that suing again violated the principle of ne bis bis in idem, and requested a ruling to dismiss Liu's lawsuit.

Legal Issues

Among the applicable conditions for the principle of ne bis in idem stipulated in Article 247 of the "Interpretation of the Civil Procedure Law", how should "the parties to the subsequent lawsuit be the same as the parties to the previous lawsuit" be determined? If the plaintiff in the former suit filed a lawsuit with the heirs of the defendant in the former suit as the defendant, can it be determined that the parties to the former suit and the later suit are the same?

Different views

A said: Formal parties said

The parties in the litigation law have no necessary connection with the substantive law. Its primary function is to resolve who caused the start of the litigation process and promote the proceeding of the litigation process. The main function of the principle of ne bis bis in idem is to prohibit repeated litigation. The determination of the same parties should be based on the formal parties' perspective and should be considered from the perspective of the formal parties. In this case, although Liu and Wang are Liu's heirs, the former lawsuit filed by Li against Liu is the same as the subsequent lawsuit filed by Li against Liu and Wang, but the parties are not the same. Therefore, this case does not meet the application conditions of the principle of ne bis in idem. The people's court should make a judgment after ascertaining the relevant property inheritance situation and should not dismiss Li's lawsuit.

B said: The subjective scope of res judicata is said

The principle of a bis bis in situ has the function of preventing repeated litigation and avoiding contradictory judgments. Therefore, the parties to "the parties to the subsequent lawsuit are the same as the parties to the previous lawsuit" certainly include the formal parties. However, the principle of res judicata itself is also a manifestation of the negative effect of res judicata, and the scope of parties should be consistent with the subjective scope of res judicata. The subjective scope of res judicata includes not only the formal parties, but also, under exceptional circumstances, the litigants and successors covered by res judicata. In this case, although the defendants in the later suit are formally different from the defendants in the former suit, the defendants in the later suit, Liu and Wang, are the heirs of the defendant in the former suit, Liu. There is an inheritance relationship in the substantive rights between the parties in the former and later suits. Liu XX and Wang XX are the general successors of Liu XX, and it should be determined that Liu XX, Wang XX and Liu XX belong to the same parties. Therefore, this case meets the application conditions of the principle of ne bis in idem , and the People's Court should rule to dismiss Li's prosecution. After the death of Liu, the defendant in the previous suit, Li, the plaintiff in the previous suit, can apply to change the persons to be executed as Liu's heirs, Liu and Wang, in the execution procedure of the judgment in the previous suit without having to sue again.

Opinions of the Judges Conference

Adoption of Yishuan

The principle of bis biscuits not only has the function of prohibiting the same parties from re-litigating the same disputed matter (subject matter of litigation) in the litigation system, but also has the function of preventing the same parties from re-litigating the same subject matter of litigation. function. Therefore, no matter from the perspective of the legal liability effect or the negative effect of res judicata, the formal parties should be included in the scope of the parties that is the subjective element of the principle of ne bis bis in idem, that is, the identity of the parties.

However, in addition to the formal parties, that is, the ordinary parties, the subjective scope of res judicata also includes people other than the parties to the case when the subjective scope of res judicata expands. From the perspective of the negative effect of res judicata, the subjective scope of the principle of res judicata should also be extended to the third party within the scope of the expansion of the subjective scope of res judicata. The heir who inherits the rights and obligations of the subject matter of the lawsuit through inheritance is the general successor of the party and is bound by the res judicata of the judgment. Therefore, it falls within the scope covered by the principle of ne bis bis in idem, which is consistent with the application of the principle of ne bis in idem by the decedent. The parties to the subsequent lawsuit are the same as the parties to the previous lawsuit."

Opinion Explanation

my country's "Civil Procedure Law" does not clearly stipulate the principle of bi bis biscuits. It is generally believed that Article 124, Item 5 of the "Civil Procedure Law" (Article 127, Item 5 of the current "Civil Procedure Law") concerning “If a party files a lawsuit in a case in which a judgment, ruling, or mediation document has already taken legal effect, the plaintiff shall be notified to apply for a retrial, except for the People’s Court’s ruling permitting the withdrawal of the lawsuit.” This is the origin of the principle of bis biscuits in Chinese law. However, the provisions of this article are too simple, and it is impossible to deduce the constituent elements and scope of application of the principle of ne bis bis in idem. In trial practice, the application of the principle of ne bis in idem has long been in a state of unstructured confusion. For this reason, Article 247 of the "Interpretation of the Civil Procedure Law" stipulates that "the parties to the subsequent lawsuit and the previous lawsuit are the same; the subject matter of the subsequent lawsuit and the previous lawsuit are the same; the claims of the subsequent lawsuit and the previous lawsuit are the same. are the same, or the subsequent litigation claim substantially negates the judgment result of the previous litigation." The three conditions that need to be met at the same time play a positive role in protecting the litigation rights of the parties and promoting the stability and smooth operation of the litigation process. However, due to the limitations of length, style and judicial interpretation itself, the Interpretation of the Civil Procedure Law does not provide further explanations on the three constituent elements of the principle of ne bis bis in idem. There is still some controversy over its application. The different understandings of “the parties to the subsequent lawsuit are the same as the parties to the previous lawsuit” in the aforementioned cases are disputes about the subjective constituent elements of the principle of ne bis bis in idem.

Since the subjective elements of the principle of ne bis in idem are not only the subjective judgment standards and constituent elements of the principle of ne bis in idem , but also the scope of the subjective validity of the principle of ne bis in idem , it is of great significance to the accurate application of the principle of ne bis in idem . In this regard, what is meant by "the parties involved in the subsequent lawsuit are the same as those in the previous lawsuit" should be judged based on the meaning and function of the principle of ne bis in idem and combined with the parties' theories.

1. The meaning and function of the principle of ne bis bis in idem

The principle of ne bis bis in idem originated from the theory of consumption of litigation rights in Roman law. After a long historical evolution, it has become an important principle and system in civil litigation in modern countries. Both civil law countries and regions and common law countries regard the prohibition of repeated prosecutions and the negative effect of res judicata as the dual connotations of the principle of ne bis bis in idem , which also means that the principle of ne bis in idem has two functions. : The first is to prevent the same parties from filing subsequent lawsuits in the litigation system, and the second is to prohibit the same parties from re-litigating the same litigation objects after the judgment is determined.

(1) The principle of bis biscuits in the effectiveness of litigation contingency - the prohibition of repeated prosecutions

litigation contingency is "the prosecution as a single act has the consequence of starting some kind of long-term effective procedure." Once the plaintiff files a lawsuit, The litigation event is the state of being tried in the court. This state is called litigation affiliation. This litigation affiliation state continues until the judgment of the lawsuit is determined, or the lawsuit is terminated due to settlement or withdrawal of the lawsuit.

litigation is a negative litigation element. Once the litigation belongs to the court, in addition to the effects of permanent jurisdiction and parties, it also generates the defense of litigation affiliation. For claims that have already occurred, the same parties cannot initiate litigation with the same purpose again at the same time. That is to say, "If the same dispute case between the same parties has already been implemented in court, the parties are not allowed to re-litigate in another court. Even if the unnecessary time and expense caused by parallel procedures are ignored, it must be prevented The possibility exists that different courts will make conflicting rulings on the same disputed case... During the litigation process of a disputed case, no party is allowed to let the case belong to another party." Otherwise, the court shall, ex officio, rule that the second lawsuit is illegal and dismiss it. This is the role of the principle of ne bis in idem in the effectiveness of litigation, and it is also the basic content of the principle of prohibiting repeated prosecution.

It is prohibited to file repeated lawsuits for the same litigation matter, not only in the same court, but also in other courts.Repeated lawsuits are not limited to independent lawsuits. Counterclaims, participation in litigation, modification of lawsuits, etc., which cause the subsequent lawsuit and the previous lawsuit between the parties to become the same lawsuit, should also be prohibited.

prohibition of repeated prosecution is essentially a concrete manifestation of the lack of interest in litigation. The interest of litigation is also called the necessity of rights protection or the interest of rights protection, which refers to "the private rights claimed by private individuals must be urgently necessary to use the method of prosecution and request the court for protection before they can use the court's litigation procedures." This necessity is the interest of litigation. The interest in the lawsuit is a specific litigation element and a prerequisite for the court to conduct a trial on the merits of the case. It plays a core role in excluding judgments in this case that have no right to protect interests. When a lawsuit lacks the benefit of litigation, the court cannot make a substantive judgment on the case, but can only dismiss the lawsuit through procedural judgment. To sue the same parties again when the same matter has already been litigated by the court will not only waste judicial and social resources, but also cause double annoyance to the other party and increase the risk of conflicting judgments. Therefore, there is no need to protect rights and lack of litigation. Interests.

(2) The principle of res judicata as a negative effect of res judicata

Res judicata is one of the effects of the court’s final judgment, and it is the mandatory universal force that determines the substantive nature of the judgment for the parties and the court. In civil litigation, after the court makes a final judgment, regardless of the outcome of the judgment, the parties and the court must be bound by the content of the judgment. The parties shall not make the same claims regarding the content of the judgment, and the court shall not make any further claims regarding the content of the judgment. and then render contradictory judgments. The binding force of a judgment is called res judicata.

Res judicata is a mandatory universal force that a final judgment has on the parties and the court in substance. Its effectiveness or function is reflected in two aspects. From a positive aspect, the positive effect or role of res judicata is that the subsequent court should respect the judgment of the previous court and handle the new lawsuit based on the res judicata matters of the previous court. The status of rights should be based on res judicata, and no different determinations should be made. In other words, the parties should not make different claims. This is the role of res judicata in prohibiting contradictions." From a negative aspect, the negative effect or effect of res judicata is that after the judgment is finalized, the parties cannot raise claims and requests in subsequent lawsuits that are contrary to or conflict with the matters judged in the previous judgment, and the court should also exclude them. The claims and evidence presented by the parties that violate res judicata prohibit the parties and the court from re-indicting and repeating trials on matters that have already produced res judicata. "...The parties shall not file a new lawsuit for the same subject matter of litigation...If a new lawsuit is filed, it shall be dismissed. That is, the effect of res judicata prohibiting reversal is the negative effect of res judicata." This negative effect or effect of res judicata, that is, preventing the parties from re-disputing the substantive content of the judgment after the judgment is finalized, is an important part of the principle of bis res judicata.

2. The scope of "the parties to the subsequent suit are the same as the parties to the previous suit" in the principle of bis biscuits

The parties in civil litigation refer to those who have disputes over civil rights and obligations, litigate in their own names, and request the court to exercise civil jurisdiction. . In terms of nature, the parties can be divided into formal parties and substantive parties. Formal parties refer to entities that are not directly related to the substantive rights and obligations or substantive legal relationships that are the subject of litigation, but who sue or are sued in their own name. The formal party is the party that causes the litigation process to begin. It is a purely procedural law concept and has no connection with substantive law. Its significance is to determine the jurisdictional court and litigation affiliation of the case, and has no significance for the resolution of substantive disputes. The substantive parties are legitimate parties or qualified parties, who are the subjects of the substantive legal relationship as the subject of the litigation or are directly related to the substantive legal relationship. The qualifications of parties with the right to implement litigation are also interpreted by some scholars as being parties to the litigation. The person shall be qualified to litigate over the specific rights or legal relations of the subject matter and be able to request a judgment in the case.The difference between a substantial party or a legitimate party and a formal party is that the formal party resolves the issue of who is a party in the litigation, while the legitimate party resolves the issue of who should be a party.

Starting from the function of the principle of ne bis bis in idem, the scope of the identity of the parties in the principle of ne bis in idem first includes the formal parties. When a case belongs to the court, it has the effect of a lawsuit family, and the parties are prohibited from filing repeated lawsuits within the lawsuit family. This litigation-related effect is also one of the basic functions of the principle of ne bis in idem. The role of formal parties in litigation law is to determine the jurisdiction of the court and the affiliation of the litigation. In other words, the function of prohibiting repeated filing of lawsuits in the litigation system in the principle of ne bis bis in idem determines that the formal parties should be used as the criterion and basic scope for judging the identity of the parties. On the other hand, according to the principle of relativity of res judicata, res judicata is in principle only binding on both parties to the lawsuit. Those who are not parties to the lawsuit are not bound by the judgment in the judgment. This means that the parties are requesting the court to make a ruling in their own names, and the judgment in this case should be directed against the parties in that name. The parties to whom res judicata is directed in the Civil Procedure Law should also be formal parties. The judgment in this case has no res judicata for the legal representatives, agents ad litem, and auxiliary third parties of the litigants. Since one of the functions of the principle of ne bis bis in idem is the negative effect of res judicata, it is natural that the formal parties become the subjective scope of the principle of ne bis bis in idem . Secondly, although in principle res judicata only affects the parties involved in the case, under certain circumstances, it is allowed and recognized to break through the limitations of relativity and act on third parties other than the parties, which is the "expansion of the subjective scope of res judicata". In the case of expansion of res judicata, even if it is not a party to the case, it will still be bound by the res judicata of the final judgment in this case. The third party cannot dispute the judgment matters that have been decided through litigation. Even if a lawsuit is filed, the subsequent court cannot Making a judgment that is inconsistent with the judgment of the previous court of appeal. Correspondingly, the scope of the identity of the parties in the principle of ne bis bis in idem should also include third parties covered by the expansion of the subjective scope of res judicata. To sum up, the scope of parties included in the constitutive element of the principle of ne bis bis in idem "the parties to the subsequent suit are the same as the parties to the previous suit" include both formal parties, that is, ordinary parties, and third parties covered by the expansion of the subjective scope of res judicata. The third party covered by the expansion of the subjective scope of res judicata includes the following situations:

(1) Person in charge of litigation

The so-called person in charge of litigation refers to a person who has the right to implement litigation as a party in relation to the rights and obligations of the subject matter of another person's litigation, and thus assumes responsibility for litigation for others. people. This situation of exercising the right to implement litigation on behalf of others is also called third-party litigation or trust litigation. According to the general theory of party qualification, when a third party has the right to enforce litigation, the other person who is the subject of the rights and obligations of the litigation loses the right to enforce the litigation. The third party has the right to manage the rights of others or the legal relationship between others. Be a legitimate party in the litigation. When the person responsible for litigating conducts a lawsuit, although the "other person" who is responsible for the lawsuit no longer has the right to implement the lawsuit and cannot be a party to the lawsuit, he is not irrelevant to the lawsuit. This other person actually becomes a hidden party, which determines the validity of the judgment. It not only affects the person responsible for the litigation as a party, but also affects the "others" hiding behind it.

1. The legal person in charge of litigation. 's so-called statutory litigation responsibility refers to "the law specifically stipulates that a third party may litigate in his own name for administrative sanctions regarding the rights and obligations of others due to his official position or other special reasons." The categories of legal persons responsible for litigation vary according to the substantive laws of various countries. Roughly speaking, there are mainly the following situations:

(1) Bankruptcy administrator. In litigation involving bankruptcy property, since the debtor is declared bankrupt by the court, the debtor has no right to manage and dispose of his own property. In order to protect the bankruptcy property and pay off the bankruptcy property fairly, the bankruptcy administrator manages the property.my country's "Enterprise Bankruptcy Law" also stipulates an administrator system, and when the people's court accepts a bankruptcy application, it appoints an administrator to exercise management rights over the debtor's property. Since the debtor has lost the right to manage and dispose of his own property, the debtor can no longer sue or be sued as a party in litigation involving the bankruptcy property. The bankruptcy administrator has the right to implement the lawsuit because he enjoys the right to manage the bankruptcy property, which has become a statutory The person in charge of litigation shall have the qualifications to be a party. Judgments related to litigation are res judicata for both the bankruptcy administrator and the bankrupt debtor. The effect of the principle of ne bis in idem also extends to bankruptcy administrators and bankrupt debtors.

(2) Executors and administrators of estates. In the case of testamentary inheritance, the deceased can appoint an uninterested person as the executor. The executor manages the testamentary property within the scope of the will, and the heirs have no right to manage the testamentary property until the property is distributed. During this period, the executor has the right to implement litigation over the testamentary property, can engage in relevant litigation as a party, and is bound by the judgment. The heir of the will has no right to enforce the lawsuit and cannot litigate as a party, but he is bound by the outcome of the executor's lawsuit. Litigation between the executor and estate administrator and a third party shall have res judicata effect on the heir. Subsequent litigation between the heir and the third party regarding the same subject matter shall be prohibited by the principle of ne bis in idem .

(3) Subrogation holder. Our country's Contract Law (currently the Contracts Section of the Civil Code) is similar to the Civil Code of civil law countries. It stipulates that when the debtor fails to exercise its creditor's rights, the creditor may exercise the debtor's rights in its own name for the purpose of preserving the creditor's rights. In this case, the subrogated creditor has management rights and legal interests in the rights between the debtor and the sub-debtor, so it has the right to implement the lawsuit. Based on the provisions of the law, it becomes a qualified party in the subrogation lawsuit as a litigant. . The result of a subrogation lawsuit binds the subrogator and the debtor in terms of their rights and obligations regarding the subject matter of the lawsuit. The res judicata of a subrogation lawsuit binds the subrogated creditor, debtor and sub-debtor. A subsequent lawsuit filed between the subrogated creditor or debtor and the sub-debtor regarding the same subject matter will be dismissed due to violation of the principle of ne bis in idem.

2. Any litigation responsibility. The so-called arbitrary litigation responsibility refers to "a majority of people with common interests who do not meet the situation of... an unincorporated group. One or several persons may be selected to sue or be sued as a whole. Such selected persons may themselves To sue or be sued on behalf of all obligees or obligors, the right to implement the lawsuit comes from the litigation trust act authorized by the majority of common interests. Therefore, the selected person is qualified as a party... In this case... Select the party The reason why a party is qualified is not... due to the provisions of the law, but due to the arbitrary selection behavior of the majority of people with common interests." In civil litigation under the civil law system, it is in principle prohibited to arbitrarily grant the right to implement litigation to others through contractual acts, so that any person responsible for litigation can litigate or respond to a lawsuit in his own name with respect to the rights and obligations of others, so as to prevent the use of litigation trust behavior. Champer litigation undermines the lawyer litigation agency system and harms the interests of the parties. In special circumstances where the above disadvantages do not occur, arbitrary litigation liability may be allowed.

An arbitrary litigant is also called a selected party in Japan and Taiwan. It refers to people who have the majority of common interests. When a lawsuit occurs with others, one or several of them can be selected to sue or be sued as a whole. The selected party The client becomes a party in his own name. After selecting the parties, other persons may not directly engage in litigation, and the death or termination of the litigation will not affect the proceedings. The selected party becomes a party based on a trust act and has a dual identity at the same time. It has the status of its own party and the status of a party with common interests. Once the selected party is confirmed, the other parties will withdraw from the lawsuit, and the selected party will have the right to implement the entire lawsuit. The final judgment shall not only be effective for the selected parties, but also other persons shall be bound by the validity of the judgment.Therefore, when the litigation involving the selected party is still in the process, or the judgment has been determined, a lawsuit initiated by or against the selected party with respect to the same subject matter violates the principle of ne bis in idem and should be prohibited. However, if the parties, although they have a common interest in the litigation conducted by the selected parties, do not participate in the selection act and do not conduct joint litigation in their own names, they will not be bound by the judgment in principle, except for situations similar to necessary joint litigation. . In this case, it is not bound by the principle of non-repudiation.

The representative litigation in our country's representative litigation is similar to the selected parties. According to Articles 53 and 54 of the Civil Procedure Law (Articles 56 and 57 of the current Civil Procedure Law) and Articles 76 to 80 of the Interpretation of the Civil Procedure Law, the litigation representative may apply In situations where the co-litigants are determined and the subject matter of the lawsuit is of the same type and the parties are uncertain.

When the co-litigants are determined, the litigation representative can be applied to both ordinary joint actions and necessary joint actions. The litigation representative may be selected by all the co-litigants, or some of the co-litigants may select the litigation representative who represents only some of them. If it is impossible to elect a litigation representative, when joint litigation is necessary, the co-litigants may participate in the litigation themselves; in ordinary joint litigation, the co-litigants may sue separately. At this time, the litigation representative is the same as the parties selected in civil law countries. They all obtain the right to implement litigation based on litigation trust and thus obtain the qualifications of a legitimate party. The litigation representative and the parties he represents cannot sue or be sued again for the same subject matter of litigation, otherwise it will violate the principle of ne bis in idem .

When the subject matter of the lawsuit is of the same type and the parties are uncertain, the litigation representative can only be selected by the parties who have registered their rights with the court, and they only represent the person who registered their rights. Based on the registration act, the parties trust the litigation enforcement rights to the litigation representative and withdraw from the litigation themselves. The rights of the parties concerned shall no longer be exercised. However, for parties who have not registered, the final judgment based on the litigation actions of the litigation representative has no natural binding force on them. Only after the people's court makes a ruling to apply the judgment or ruling, the original judgment will be accepted based on the ruling. constraints on the outcome of the judgment. At this time, the representative litigation and the parties he represents, as well as those who have not registered but the court ruled that the original judgment should be applied, also cannot sue or be sued again for the same subject matter of litigation based on the principle of ne bis in idem .

(2) Litigation Participant

After a lawsuit is filed, a third party other than the original and defendant parties participates in the lawsuit, which is called a litigation participant. A person who participates in another person's lawsuit is a litigation participant. The purpose of the civil litigation system is to resolve private rights disputes between parties. The filing of a lawsuit is also centered on the legal relationship between the opposing parties. However, private rights disputes are sometimes caused by many reasons and are not always limited to the original defendant. The results of the adjudication sometimes affect third parties other than the original defendant. Therefore, in order to protect the rights and interests of third parties other than the original defendant and achieve the ultimate resolution of disputes, countries around the world, including countries in civil law systems, generally stipulate litigation participation systems in civil litigation systems.

litigation participation includes two situations: principal participation in litigation and slave participation in litigation. Principal participation in a lawsuit means that a third party participates in the lawsuit in an independent position, that is, "with respect to all or part of the subject of litigation between others, making a request for himself or claiming that his rights will be infringed as a result of the litigation, and he may In this lawsuit, a lawsuit is filed with two parties as co-defendants"; "participation in the lawsuit" refers to a third party participating in the lawsuit in an auxiliary position, that is, "a third party who is legally interested in the lawsuit between the two parties." A person who, for the purpose of assisting another party, joins his or her actions in the litigation system." The system of third parties with independent claims and third parties without independent claims stipulated in my country's "Civil Procedure Law" is similar to the litigation participant system in countries with civil law systems.

1. Main participant. The principal participant is an independent person who participates in the litigation through litigation in a litigation relationship between others.In main-participation litigation, a participant joins the litigation based on two circumstances: first, the participant claims his or her own rights to all or part of the subject matter of the litigation between others; second, the participant claims the outcome of the litigation between others will infringe on your own rights. A principal participant participates in a lawsuit between others by filing an independent lawsuit with the plaintiff and defendant as co-defendants. Therefore, the scope of res judicata for the parties involved in the principal participant litigation is not essentially different from that of ordinary civil litigation. It only slightly increases the complexity of the subject of the litigation. The principal participant has the status of a party, and if the relevant litigation subject is sued again between the three parties, whether in the litigation system or after the judgment is determined, the lawsuit will be dismissed for violating the principle of ne bis in idem .

The third party with independent claim rights in my country is very similar to the principal participant in civil law countries and regions. Except that the result of another person's lawsuit will infringe the rights of the third party as a reason for a third party with an independent claim to join the lawsuit, there is no essential difference between a third party with an independent claim and a principal participant in my country. No matter in the litigation process or after the judgment is finalized, no further lawsuit can be filed with respect to the relevant subject matter of the lawsuit based on the principle of ne bis bis in idem.

2. From the participant. In the civil procedure law of the civil law system, in an ongoing lawsuit between others, a person who is interested in the outcome of the lawsuit participates in the lawsuit as an auxiliary party, so that the assisted party The parties win the lawsuit and thereby protect their own interests. An accessory participant assists one party in various litigation actions in his own name and as an accessory participant, and his status is subordinate. The secondary participant is neither a litigant nor a litigation agent, and is also different from a co-litigant. A secondary participant participates in the litigation in the form of an auxiliary party. Therefore, although he engages in litigation in his own name, he cannot request a court judgment in his own name and is not the subject of the judgment. The participant shall not dispose of the substantive rights of the participant, nor shall its litigation actions conflict with the litigation actions of the participant. When an appeal is filed, it can only be filed within the appeal period of the participant.

As far as the subjective scope of the principle of ne bis bis in idem is concerned, in the case where the participant participates in the lawsuit, the effect of being bound by the principle of ne bis in idem is different in different situations between the participant, the participant and the other party. Between a participant and a participant, the legal relationship between them is not subject to the limitation of the principle of ne bis bis in idem; between a participant and the other party, since the participant is not a party, the other party shall not It is not bound by the res judicata between the parties and is not bound by the principle of ne bis bis in idem; between the party involved and the other party, due to the effect of res judicata arising from the legal relationship of the subject matter of the litigation, the same subject matter of the litigation cannot be litigated again. , falling within the scope of the principle of no-nonsense.

The third party without independent claim in my country’s civil procedure law is different from the accessory participant in civil law countries and regions, and is not a simple auxiliary third party. From the perspective of civil litigation practice, there are two situations for third parties without independent claims. One is to assist one of the parties in litigation, and the other is to conduct litigation independently. A third party who assists others in litigation, due to the formation of a legal relationship, is at a legal disadvantage because the party he is assisting loses the lawsuit, and his participation in the litigation is an auxiliary and non-independent right of claim. Three people. Such third parties without independent claim rights are rare in practice. A third party without independent claim rights who independently conducts litigation is a relatively common type of third party without independent claim rights in practice. He participated in the lawsuit either because the plaintiff, as the right holder, sued the defendant for civil liability, and the defendant requested to add someone else who he believed should bear the responsibility in order to transfer the liability, or because the right holder had no direct connection with the third party in substantive law. The person with the direct legal relationship is regarded as the defendant, and the actor with the causal relationship is regarded as the third party and the additional request is made.In both cases, the added third party without independent claim rights was not voluntarily summoned by the court to participate in the litigation. The applicant's purpose is also to make the third party without independent claim rights bear civil liability. The three persons have no objects to be assisted. This third party without independent claim rights is in most cases the real defendant in the lawsuit. In order to protect its own rights and interests, it must carry out independent litigation actions.

For a third party without independent claim rights, in the case of an auxiliary third party, it is very similar to an accessory participant in civil law countries and regions, and is not bound by the res judicata between the parties with the other party. , not bound by the principle of no-nonsense. In the case of independent litigation, the third party without independent claim rights is in most cases the essentially opposing party. Although the legislation is ambiguous about the status of parties to third parties without independent claims, they should still be given the status of parties in litigation, and they should fall within the subjective scope of the principle of ne bis in idem .

(3) The successors of the parties after the litigation is attached.

The so-called successors of the parties refer to those who inherit the rights and obligations of the subject matter of the lawsuit through inheritance and thus have the status of a party. After the litigation belongs to the court, the person who inherits the status of the party can be divided into two situations: general successor and specific successor.

1. People generally inherit . General successor is a succession situation that occurs due to the death of a natural person party or the merger of a legal person or an unincorporated group of parties with a representative or manager. If a party dies, his or her heirs shall inherit all rights and obligations of the decedent's property, and the res judicata of the judgment shall also extend to all heirs. If a legal person is eliminated due to merger, the rights and obligations shall be borne by the legal person that survives the merger or is newly established. The res judicata of the judgment shall extend to the legal person that survives the merger or the legal person that is newly established. Unincorporated groups with a representative or administrator are subject to the same rules as legal persons.

For general successors, if the cause of succession occurs in the litigation family, the litigation process will be suspended. After the legal successor succeeds to the litigation, the litigation will continue. At this time, the successor will become the successor because of entering into the litigation. party. The successor generally refers to the subjective scope of the effect of res judicata. It only refers to the person who has not accepted the lawsuit. It is a situation where the cause of succession arises after the judgment has become res judicata. In this case, since the successor is bound by the res judicata of the judgment, it certainly falls within the scope adjusted by the principle of ne bis in idem.

2.Specific successors. specific successor refers to the person who is assigned the rights and obligations of the subject of litigation due to legal acts or legal provisions or national public law acts such as court auctions. In litigation, when a party transfers the legal relationship of the subject of litigation, the transferee is the specific successor. Although he is not a party to the litigation, his management and disposition of the legal relationship of the subject of litigation is also subject to the res judicata of the judgment. constraints.

(4) The person who possesses the subject matter of the request for the party or his successor

This situation refers to when the subject matter of the lawsuit is a claim for the purpose of delivering a specific thing, and if the specific thing is claimed by someone other than the litigation party or A situation in which his heirs take possession instead of taking possession for themselves. The scope of specific things is not limited to movable property, immovable property or rights; the time of possession is not limited to after the commencement of the litigation, but also includes persons who have possessed the subject matter of the request for the parties or former successors since before the litigation. Inside.

The person who possesses the subject matter of the request for the party or his successor shall be bound by the res judicata of the final judgment of the litigation between the parties regarding the subject matter of the action. Therefore, the person who possesses the subject matter of the request and the other party may not file another lawsuit regarding the subject matter of the judgment, otherwise it will violate the principle of bis biscuits.

(5) The general third party to whom the res judicata is effective

In ordinary civil litigation, the scope of the judgment's res judicata is based on the principle of both parties, that is, the res judicata is relative.However, in personnel litigation related to identity relationships and litigation involving corporate group relationships, for the purpose of maintaining the unity of identity relationships and the purpose of uniformly regulating the relationship between shareholders within the company, countries and regions with civil law systems have legislatively , usually stipulates that the effect of the judgment extends to general third parties within a certain range. This includes lawsuits regarding the existence or revocation of identity relationships, lawsuits filed by shareholders to invalidate company establishment, lawsuits regarding the invalidation or revocation of shareholders' meeting resolutions, and other situations expressly provided for by law. If the plaintiff wins the case, its effect will extend to the third party. If the plaintiff is dismissed, the res judicata of the judgment will have no effect on the world.

Scholars have explained this situation from the perspective of the formation and effectiveness of the judgment. Since most of the lawsuits in this case are formation actions for revocation or modification, although the rest are not formation actions in form, they have the essence of formation actions behind the form of confirmation actions. Based on the interlocutory effect of the judgment, the judgment has the effect of binding third parties. However, whether this situation is interpreted as the expansion of the effect of res judicata on third parties or as the formation effect of the judgment, it has no impact on the understanding of the subjective scope of the principle of bis res judicata. In the case where the plaintiff wins, anyone who files a lawsuit against the same subject matter will constitute a repeated lawsuit, which is prohibited by the principle of ne bi bis in idem; in the case of the plaintiff loses, the principle of ne bi bis in idem will also prevent the same party from suing The subject matter will be prosecuted again.

Legal article link

1. "Civil Procedure Law of the People's Republic of China" (2021 Amendment)

Article 127 The people's court will handle the following lawsuits according to the circumstances:

(1) In accordance with the provisions of the Administrative Procedure Law, it is If the scope of administrative litigation is within the scope of the case, inform the plaintiff to file an administrative lawsuit;

(2) In accordance with the law, if both parties reach a written arbitration agreement to apply for arbitration and are not allowed to file a lawsuit in the People's Court, inform the plaintiff to apply for arbitration to an arbitration institution;

(3) In accordance with the The law stipulates that for disputes that should be handled by other agencies, the plaintiff shall be informed to apply to the relevant agency for settlement;

(4) For cases that are not under the jurisdiction of this court, the plaintiff shall be informed to file a lawsuit with the People's Court with jurisdiction;

(5) For judgments, If a party files a lawsuit in a case in which the ruling or mediation document has become legally effective, the plaintiff shall be notified to apply for a retrial, except for the People's Court's ruling allowing the withdrawal of the lawsuit; If a lawsuit is filed within the time limit, the case will not be accepted; (7) If the plaintiff files a lawsuit within six months without new circumstances or new reasons, the case will not be accepted; , will not be accepted.

2. "Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China" (revised in 2022)

Article 247 If a party files a lawsuit again during the course of the lawsuit or after the judgment takes effect, the party shall file a lawsuit again. If the following conditions are met at the same time, it constitutes a repeated lawsuit:

(1) The parties in the subsequent lawsuit are the same as the previous lawsuit;

(2) The subject matter of the subsequent lawsuit is the same as the previous lawsuit;

(3) The claims in the subsequent lawsuit and the previous lawsuit are the same , or the subsequent litigation claim essentially negates the judgment result of the previous litigation.

If a party files a lawsuit repeatedly, it will be ruled not to be accepted; if the lawsuit has been accepted, it will be ruled to dismiss, except where the law or judicial interpretation provides otherwise.

Similar case search report

1. Search tool: Faxin Platform - Similar case search

2. Keywords: Duplicate litigation, principle of bis bi litany; Filter conditions: Trial court - Supreme People's Court

3. Search results: The search keywords "repeated litigation and disregard of a matter" retrieved 5 civil cases

IV. Similar case documents

(Minutes of the 14th Judges' Meeting of the Second Circuit Court of the Supreme People's Court in 2019)

▼

More information, Long press | Scan the QR code

Follow © Shandong High Court

Source: "Minutes of the Judges' Meeting of the Second Circuit Court of the Supreme People's Court (First Series)" (People's Court Press, October 2019 Edition), Second Circuit After the court and the Supreme People's Court Judicial Case Research Institute

"Civil Code", the basis + method + evidence + adjustment principle for determining "liquidated damages are too high"

2022 latest! Personal injury compensation items + calculation method

After the company is ordered to pay back social security, can it support the return of social security subsidies from employees?