In recent years, a large number of new types of civil disputes into the court system, which has brought a lot of pressure and challenges to the filing of the review, for some new types of cases, the court should accept, how to review the time is not yet clear legal provisions. For example, the legal relationship between the plaintiff and the defendant is more and more. The new type of litigation is different from the traditional legal proceedings. However, it is far from meeting the needs of the negative confirmation. The theory and practice have a big difference. The practice is very different. The theory circle and the practice circle have a big difference in the negative confirmation. Therefore, this article is based on the principle of equality of rights of the parties, the combination of China's negative recognition of the reality of the litigation system, the acceptance of the negative confirmation of the legislative proposal, in order to establish a negative confirmation of the litigation system is helpful.
The theoretical evolution of the negative confirmation
(a) the historical evolution of the negative confirmation
The negative confirmation of the lawsuit of the German federal law on the "prosecution and reporting procedures" system. This is an obligation to urge the parties to the plaintiff as soon as possible prosecution procedures. The system of prosecution and reporting procedures in Germany is not from the beginning, but with the change of the doctrine of "right of action", which is slowly formed in the judicial proceedings. In German common law era, "private right" said, "the doctrine of civil procedure law is understood as the substantive law of the law, the purpose is to protect private rights, under the doctrine of the rule, the negative confirmation of the lawsuit is not universally recognized. By the end of nineteenth Century, the right of private law to be abandoned, the negative confirmation of the lawsuit to be universally recognized, and eventually be in 1877 German civil code to be clearly defined. Subsequently, the mainland legal system have begun to follow the law. After twentieth Century, the American legal system countries, with the declaration of the system of the emergence of the recognition of the status of recognition. In twentieth Century 70, 6 time, Japanese scholars began to study the negative confirmation of the negative. However, in our country, we have not yet entered the field of view, until twenty-first Century, the practice of intellectual property rights in the new demands of the infringement confirmation, scholars have begun to study the negative form of recognition of the complaint. At present, the infringement of intellectual property right in our country's theory and practice has become the embryonic form, but the civil contract, tort and other areas of the negative confirmation of action to be a study.
(two) the concept and characteristics of the negative confirmation of the complaint
The negative confirmation of action is a part of the confirmation of the complaint, which is a kind of form of action, which is the legal relationship between the plaintiff and the defendant. Such as: confirmation of the debt does not exist, the confirmation of non infringement, etc.. The negative confirmation of the action and the positive confirmation of the plaintiff's right in his right into a certain kind of unstable state of the complaint, it requires the court to confirm the interests of the plaintiff. The negative confirmation of action in some cases will also become the premise of the payment, but some time to eliminate the necessity of Gei Fuzhi v. is usually the parties to get rid of the other party or to clarify the existence of a state of existence.
There are some common characteristics in the negative confirmation of the lawsuit and the positive confirmation. The dispute must be the legal dispute of the reality. Second, the confirmation does not exist, such as: confirmation of the marriage is invalid, the decision does not exist, and the negative confirmation is not effective. Different from positive confirmation, the party's negative confirmation is that the other party fails to file a lawsuit, but by warning, conciliation or continuous struggle to maintain the right, in this case, the party may not have to bring up the lawsuit, to eliminate the unstable state, to protect their legitimate rights.
(three) the basic classification of the negative confirmation of civil action in our country
Negative confirmation is a kind of action, we can classify them according to different standards, in order to grasp the common points and differences between different kinds of negative confirmation, which will help us to grasp the characteristics of negative confirmation.
1 different classifications in accordance with the law
Legal relationship is the case of qualitative criteria, the negative confirmation suit just a type of action, because there is no level will confirm action to unify the legislation in our country, so in specific cases qualitative case, cause of action and the trial only from the civil substantive law to find the basis. According to the different civil legal relations, the negative confirmation can be divided into the following categories: (1) the negative confirmation of the contract, such as: confirmation of non infringement; (3) the negative confirmation of the qualification of the main qualification, such as: confirmation of the negative confirmation of identity relationship, such as: confirmation of parent child relationship does not exist, confirmation of invalid marriage.
2 classification according to the nature of the proceedings
According to the content of the negative confirmation of the complaint can be divided into: the legal relationship does not exist in the negative confirmation of the litigation and the law does not exist the negative confirmation of the complaint. In general, the parties can only make a confirmation request to the legal relationship, can not be required to confirm the facts, but there are exceptions, that is, when the "facts" of the confirmation will lead to a fundamental solution to the dispute, but also to recognize the benefits of this fact. The litigation system of confirming the authenticity of the certificate is established in the Civil Procedure Law of Germany, Japan and Taiwan in China.
3 Classification of different categories according to the scope of litigation request
According to the negative confirmation of the request scope of different points: the negative confirmation of the negative part of the negative confirmation of the negative confirmation of the negative confirmation of the negative confirmation of the existence of civil legal relations or legal facts; part of the negative confirmation of the negative confirmation, when both parties acknowledge the existence of legal relations or legal facts, but in the presence of the existence of a consensus, generally only in property disputes.
4 classification according to the party's right of disposition
According to the party's right to dispose of the right can be divided into: the negative confirmation of the right of action, such as: the right of debt is not the right of action; the negative confirmation of the right of action, such as: confirmation of marriage is invalid. Their demands for interest of litigation is slightly different, have the right to dispose of the negative confirmation suit, when parties prior to negotiate essential, namely a party in negative confirmation suit filed before should first and the other party was full of negotiations. This is because prior representations can prevent the duty of a surprise attack, the obligee unnecessary damage [5]; no right to dispose of the negative confirmation suit, because the content is in accordance with the provisions of the law, the parties negotiate and no had no effect on the results, so there is no right to dispose of the negative confirmation suit usually have laws expressly.
Two, the legal basis of the negative confirmation of the complaint
(a) the parties' right to equality
The legal right is the right of the court to sue the court according to the law, the right to claim the court ruling according to law. Where there is no substantive right of the parties, it will not go to the court to prosecute (the malicious prosecution, the exception of abuse), the right to litigation, and it may not really enjoy the civil substantive right.
Litigation right is a basic right of all people who have the interests of dispute, but the substantive law and the practice circle have a wrong opinion. The substantive rights and procedural rights are not different. The main body of the rights and obligations of the entity is not different from that of the plaintiff. This has seriously infringed upon the rights of the parties, resulting in the unequal rights of the parties, and some of the reasons for the negative confirmation.
Therefore, from the perspective of the principle of equality of right of the main body of the civil procedure, accepting the negative confirmation is the guarantee of the right of the party in the civil litigation, and also the embodiment of the equality of the parties. If the law does not give the right to protect their legitimate rights and interests, it is obviously not fair to the people who are in a state of being.
(two) the interests of the negative confirmation of the existence of the complaint
"No interest, no right of appeal", as one of the elements of the right of appeal, the interests of the court is the premise of the court accepted the civil case. The benefit of litigation means: when the civil rights and interests are infringed upon or with others, it is necessary to use the necessity of civil action to remedy. It is the plaintiff claimed interests in danger or upset, in order to remove the danger or discomfort to resort to law means.
The negative confirmation suit is generally due to disputes between the parties, advocate the rights of a party does not take the initiative to sue but take vexatious vexatious and other ways to claim their rights, so that the relationship of the rights and obligations of both parties in an unstable state, the stable state of compulsory artificial influenced, the plaintiff is obligations under unbearable disturbing filed request the court to determine the lawsuits between the two sides of the legal relationship does not exist or parts do not exist, with clear rights and obligations. The person who has the obligation to bring a lawsuit against such an uncertain state has the confirmation interest.
One of the interests of the interests is the confirmation of the interests of the negative confirmation of the interests of the lawsuit is: the legal relationship is not clear, leading to the plaintiff feel the legal status of the right to exist, and this state can be confirmed to remove. In the case of the right person not to file a lawsuit, the people of the state of the non stability of the obligations only through the confirmation of the action to remove. This confirm the interest is different from the civil substantive rights and interests, but negative confirmation suit confirmation benefit is the same as the general confirmation litigation interest. In general, it is considered that the interests of the three aspects are: one is the appropriateness of the solution; the two is the appropriateness of the choice of the object; three is the necessity of the dispute settlement. Therefore, as long as the negative confirmation of these three conditions is satisfied, it has the benefit of confirmation.
Three, the status quo and problems of China's acceptance of negative confirmation
(a) legislative level
The purpose of civil procedure is not only to protect the substantive rights, but to solve the social disputes in reality. If the parties can not resolve disputes through self relief, it is necessary to set up a certain way to be resolved. So, when the two parties to the court proceedings, to resolve the existing dispute. However, there is no clear stipulation about the negative confirmation of civil litigation in our country, and we can find some general rules in the relevant regulations:
1 provisions of the Constitution and the basic law
"No relief, no right", most countries and regions of the Constitution provides for the basic rights of citizens and specific rights of the relief rights, that is, "the right of claim". The Universal Declaration of human rights, the International Covenant on Civil and political rights, as well as some regional human rights conventions have also confirmed the right to claim the right to claim. The right of claim has become an international standard of human rights, and is the supreme principle of modern civil justice.
Such as: China's Hongkong basic law, the thirty-fifth provisions, Hongkong residents have the right to bring a lawsuit to the court, the Macao basic law thirty-sixth also provides that Macao residents have the right to resort to the law, the court proceedings. China's "constitution" does not provide the right to judge, for example, "the people's Republic of China is the country's judicial organ". "The people's court is the state's judicial organs." and "the people's court shall be open to" and "the people's court shall exercise judicial power independently without administrative organ, social organization or individual.".
The provisions of the negative confirmation of the substantive law of China, such as: "the contract law of the people's Republic of China", "the fifty-second" of the contract is invalid, "the marriage law of the people's Republic of China", which has been proved to be negative in the civil law of our country. However, from the current situation, the negative confirmation of the standard is too narrow, most areas still lack of specific legal norms to adjust, in practice, there is a negative confirmation of the lawsuit to the court, but can not follow.
Negative confirmation is a kind of litigation, and it is not related to the characteristics of the litigation of payment, the characteristics of the litigation, the formation of litigation, and the relevant provisions of the negative confirmation. From the "Civil Procedure Law" on the admissibility of the case, the "Civil Procedure Law" only in the 119th provisions of the substantive elements of the admissibility of the case.
2 case reply and judicial interpretation
Our country has no specific provisions of the laws and regulations of the negative confirmation, the similar cases in practice can only be guided by judicial interpretation and case approval. Since July 2002 the Supreme People's Court on the case of Suzhou Long Bao company made the approval of the 10, confirmed that the intellectual property infringement litigation belongs to the people's court should accept the case, opened a negative confirmation of the precedent in the field of intellectual property. Next, there are many intellectual property infringement claims in the country have emerged. Thus, the Supreme People's Court of justice in December 2009 passed the Supreme People's Court on the application of a number of legal issues of infringement of patent disputes, the interpretation of the eighteenth provisions: the right to issue a warning to others, the right to exercise the right to appeal, the right people received the written notice issued within two months from the date of receipt of the written notice issued within a month, or from a written notice issued within 11 months, the people's court, the people's court should be accepted.
Although the interpretation is only for the patent right, only involved in the acceptance of the conditions of the case, which is a negative confirmation of the lawsuit in our country's first confirmation. The explanation of the negative confirmation of action in our country does exist and should be accepted, China's urgent need to establish a negative confirmation from the legislative level.
The provisions of the 3 civil cases by the
The negative confirmation suit in recent years has a very large market of litigation, but our country in 2011 the new modified four part of the cause of action of civil cases shall, in the original contract confirmation of invalid marriage and invalid based on the increase in the "Confirmation not a patent infringement dispute", "confirmed not violated the exclusive right to use a registered trademark disputes", "confirming non infringing the copyright dispute" three four cause of action of the negative confirmation suit, and in other legal relationships did not explicitly stipulated in the negative confirmation suit, there is no the negative confirmation suit independently determine the cause of action. Practice on whether the negative confirmation shall accept the verdict, there is still much controversy by how. But the cause of action of civil cases provisions stipulated: "people's courts at all levels cannot be the cause of action is equivalent to the conditions of acceptance of the provisions of Article 119 of the" the people's Republic of China Civil Procedure Law of the and not to the party's petition in the regulations on cause of action of civil case no corresponding cause of action can be applied on the grounds, the ruling shall not be accepted or rejected the prosecution, affect the parties to exercise their right to appeal. " Can be seen, the provisions of the new type of case to the admissibility of space.
(two) the level of judicial practice
The negative confirmation of the field of intellectual property right now has a certain result, but the negative confirmation of other fields is still not relevant legislation. "Sinosteel Corporation and Xinda Asset Management Corporation Shenyang Office guarantee contract dispute" a case is the Supreme People's court in the trial of the first debt does not exist negative confirmation suit. Our country is a country with a written law, not to recognize the "case", but through the trial of the case, at least, the necessity of the negative confirmation of the admissibility of the complaint is confirmed. With the enhancement of people's idea of rule of law, the negative confirmation suit is also more and more people suffer from cannot find its litigation status in the negative confirmation suit, usually only the defendant itself, in some tort and contract disputes, one of the parties is often the other party's unreasonable entanglement and put yourself in a state of unrest, the prosecution to the court, the court did not accept.
The new civil procedure law requires that the people's court shall accept the prosecution in accordance with the 119th provisions of the civil procedure law. But in practice, there are two extreme cases of negative confirmation, some courts in the process of accepting the case, regardless of the effect of the contradiction, the court, after the discovery of negative confirmation of litigation through the judicial process is not good, resulting in the rights of the people is not guaranteed, seriously affected the judicial authority and the judicial public trust, the work of the court to bring great inconvenience, causing negative social effects. Another court in accordance with the current negative confirmation of the complaint does not have a specific acceptance, so take the "three no" principle, that is not to charge the material, do not issue a written ruling, not filing, not accepted, as far as possible the use of pretrial mediation or linkage mediation to resolve disputes, but also to some of the parties and social discontent. Therefore, the negative confirmation of the appeal as a type of action if not the legal proceedings of the last line of defense to protect the right of the parties are not legally recognized, will not be a good solution to disputes, protect the legitimate rights and interests of the parties.
Four, China's acceptance of the negative confirmation of the legislative idea of litigation
At present our country has not yet the normative legal document on the negative confirmation of the lawsuit, and the legal system of the lawsuit of the negative confirmation. However, the negative confirmation of the lawsuit is increasing, the issue of the admissibility of the increasingly prominent, the existing civil procedure law 119th has been unable to simply apply to the negative confirmation of the appeal, the court's practice is not consistent. Therefore, it is urgent to make a unified legislative provisions to regulate the acceptance of negative confirmation of the complaint.
(a) the constitutional protection of the right of adjudication
Under the circumstances of the prohibition of private relief under the contemporary rule of law, the legal rights and interests of the parties can not be maintained and relief if the legal rights of citizens and legal persons are not guaranteed. Therefore, we must first from the constitutional point of view, the right to appeal as a basic right of citizens to the law. The latest amendment to the Constitution in 2004 by, has more than ten years old, from the point of view of the current situation, awareness of the rights of citizens is gradually long, China in the protection of the fundamental rights of citizens does still exist some, in some of the basic rights of constitution in our country many experts and scholars have higher voice, which not only represents the interests of the people and look forward to, but also reflects our country really need to consider the promulgation of the new constitution amendment will be included in the scope of the protection of the human rights of some basic rights. The constitutional protection of the right of judicial appeal is the protection of the basic right of appeal, and on the other hand, it is an international obligation after China's accession to the relevant international human rights conventions. Therefore, the author suggests that in the future of the constitutional amendment, it is necessary to put the right of action and some other basic rights in the protection of the constitution.
(two) the specification of the negative confirmation of the Civil Procedure Law
From the legislative level to protect the rights of the parties, not only the provisions of the constitution, but also from the civil procedure law to be standardized. In this paper, we consider some procedural law of our country in order to guarantee the realization of the party's right of action and the standard of legal proceedings.
China's "Civil Procedure Law" 119th to the conditions of the prosecution is too broad, difficult to grasp in practice, the negative confirmation of the plaintiff in the case, whether there is an interest, the extent to which is interested in the case of the free discretion of the staff, so it is easy to cause the practice of filing difficult. Our implementation of separation of state and filing court can only assume cases in the form of review, substantive review should be into the courtroom litigation review process, if the filing stage on the parties to the litigation request review, is bound to cause part of litigious rights were infringed the problems.
Therefore, it is suggested that we should expand the scope of civil litigation in our country to explore the implementation of conditional registration system. Up to now, the implementation of our country's registration system, not only reduces the efficiency, but also many cases out, so that the interests of the masses can not be protected.
With the continuous development of the market economy, the drawbacks of the filing system is becoming more and more prominent. The continuous deepening of the judicial reform, the establishment of a conditional registration system to adapt to the development of the litigation market. The so-called conditional filing registration system is a party to the court proceedings, filed with the requirements of the prosecution, the court just do some procedures review. In belongs to the jurisdiction of the court of the premise to see whether the material is complete, such as the material is complete or receive materials to complete the requirements, after correction, the court should carry out registration [12].
Under the conditions of the registration system, the negative confirmation of the right to be able to enter the proceedings. Due to the particularity of the negative confirmation suit, civil procedure law of the people's Republic of China is not easy to in the Department of law will stipulate the negative confirmation suit, suggested that the negative confirmation suit in the specific chapter in the civil procedure law to give the standard. However, the negative confirmation of the appeal is also very easy to cause the abuse of litigation and malicious prosecution, which is bound to make the necessary restrictions. In the form of procedural law, the negative confirmation should be defined as the prerequisite, the appropriate case, the special rules of evidence, and the special provisions of the litigation system. In view of the negative confirmation of the complaint, it is only for the confirmation of the relationship between the two parties. The individual thinks that the special procedure of the first instance of final appeal can solve the negative confirmation. If confirmed, the dispute can be settled in the litigation. A series of questions about the negative confirmation of the lawsuit, and the improvement of the law, but also to be more in-depth exploration.
(three) the provisions included in the negative confirmation
Cause of action is a generalization of the dispute legal relationship, reflect the nature of the civil legal relations in the case, so in the theory circle and the practice will negative confirmation suit in accordance with the nature of the legal relationship to finalize by there's nothing wrong with that, just the negative confirmation suit no in each part of the cause of action be specified explicitly. It is easy to court to reason no cause of action will negative confirmation suit shut out. Therefore, in theory has the negative confirmation suit as shall accept the cases of type, as well as the civil procedure law also has corresponding procedural provisions of the premise, should be the negative confirmation in the lawsuit is similar to the form of intellectual property infringement litigation, in each part of some common negative confirmation suit clear cause of action is inevitable in the future.
At present, our country is not from the aspect of legislation will be negative confirmation suit into the category of civil litigation, but according to the provisions of the new cause of action of civil cases: "the people's courts at all levels shall not to the party's petition in the regulations on cause of action of civil case no corresponding cause of action can be applied on the grounds, shall decide not to accept or reject the lawsuit, affect the parties to exercise their right to appeal." Such as can not find the right of action but in line with the conditions of admissibility, can according to the following principles to determine: selected provisions of the cause of action identified the origin of the most similar case, and determine the cause of action escalation to ensure the unity of the new type of action and legal [13]. So, accept the current negative confirmation suit can be directly to the petition of the legal relationship and legal facts the origin of the genus case determined; in the petition of the negative confirmation belongs to a legal relationship of some facts or a portion of the content can be directly to the legal relationship is finalized, regardless of the cause of action and the negative confirmation suit Sue whether in the form of associated. Such as safekeeping contract does not exist negative confirmation suit, custody contract to finalize by; in being with other legal relationship, a safekeeping contract only when the disputes between the parties, according to the law relationship to finalize by so as to solve the existence of safekeeping contract can also be together to resolve the dispute, to avoid the mentioned again prestation.
Of course, after a cause of action identified in the case did not enter the examination as to substance filing stage is uncertain, only the case into the trial stage can be determined.
Five, conclusion
In the form of negative confirmation, the action of the lawsuit, the formation of the lawsuit, the latter two have been widely studied by the scholars in our country. With the development of new type of lawsuit, we begin to appear more and more negative confirmation. We can see the negative confirmation as a kind of simple and convenient litigation type will be more and more accepted by the society. In this paper, the author makes a brief analysis on the admissibility of the negative confirmation of the admissibility of the complaint, and puts forward some suggestions and ideas based on the current situation of China's negative confirmation. Because of my limited academic foundation shallow and the lack of practical experience, ability is limited, the failed to the basic theory of the negative confirmation suit made rich achievements of the discussion, there is no acceptance of the negative confirmation suit made a profound argumentation, put forward the suggestion and legislation idea is also very shallow, and to be in the future to continue to adhere to the research.