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On Alteration of Claim

Author: CuiYunTao
Tutor: WangQiuLan
School: China University of Political Science
Course: Procedural Law
Keywords: Alteration of claim Condition Object of claim
CLC: D925.1
Type: Master's thesis
Year: 2008
Downloads: 314
Quote: 1
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Abstract


The alteration of claim differs with the alteration of party and combination of claim in its goal and value so greatly that it should not include the alteration of party and combination of claim.Meanwhile, because the alterations in claim and fact could have influence on defendant as well as the whole process of litigation,it should consist of them.Moreover,it is different from withdrawal of claim,so the extent of alteration can not reach the situation in which the rule of withdrawal of claim should be applied.For this reason,it really is between non-alteration and withdrawal of claim.It is concerned with relation between plaintiff,defendant and court that represents public interest in litigation.Based on this fact,Germany and Japan and other countries in civil law tradition set some conditions to the alteration of claim,including substantial and procedural conditions. Obviously,Germany still adopts the Principle of banning alteration,Japan, on the contrary,adopts the Principle of allowing alteration.But Germany has had same attitude on it in compared with Japan after it introduced the mecancism in which judge has powers to appraise and make decision in whether to allow the alteration of claim.At present,these two countries set same conditions of maintaining smooth process and non-deferring process. In fact,the transform into the Principle of allowing alteration is inevitable from the view of history.The reason for that lies in the defect of the Principle of banning alteration in which the whole litigation is determined by defendant.In contrast to it,the "allowing" principle can safeguard right of plaintiff to alteration while protects defendant’s interest of safety and public interest.China now disappointedly adopts the Principle of thoroughly allowing alteration,which means plaintiff can alter claim and fact without limition with the result of harming other’s interests.Based on above discuss,I hold the idea that China should adopt Japan’s model. Just because of this trend of transform,the object of claim,which was necessary in traditional background,is valueless now.The reason is that traditional idea had a big mistake,as well as it is only a instrument in the systems of claim.Of course,the principle of allowing alteration no longer needs it.It should be not only consistent with certain conditions,but also be carried according to the rules set by law.First,it should be applicated before end of arguing.Secondly,judge should make judgment in it as fast as possible,and,the result of it includes two aspects:maintaining the litigation and banning defendant from repeatedly litigating it.

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CLC: > Political, legal > Legal > Chinese law > Procedural Law > Civil Procedure Law
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