I. Basic understanding of the principle of ne bis in idem
At present, the principle of "non bis in idem" in the theory of civil procedure contains two meanings: first, the lawsuit is effective, that is, the parties may not sue again for a case that has been sued or is being sued, even if it is sued again, the court may not accept it; Second, after the judgment comes into effect, the case has res judicata, and the parties may not sue again for the same fact and reason about the disputed legal relationship between the two parties. Since the same incident has been accepted or judged by the court, it is not allowed to sue again, and the court should not accept it again, which not only avoids making contradictory judgments, but also avoids the entanglement between the parties and the lawsuit.
"Never mind one thing again" has always been regarded as a "principle" in civil litigation. In judicial practice, the court's judgment is also based on the principle of non bis in idem, but China's civil procedure law does not specify the non bis in idem. Therefore, in practice, the grasp and application of the meaning of non bis in idem is quite confusing. Judges in different courts, even in the same court, have not formed a unified understanding and standardized operation on what is "one thing is no longer ignored" and how to "one thing is no longer ignored". Improper application of this principle will not only affect the res judicata of a settled case, but also hinder the litigant's due litigation rights.
Second, the understanding of the principle of non bis in idem
How to understand that a thing is no longer reasonable mainly involves two points: 1. What is "one thing"; 2. How to "ignore"?
(A) What is "one thing"
The semantic understanding of "one thing" is "the same thing" or "the same fact" A dispute caused by "one thing" is finally resolved after being handled by the court entity, and then the court is required to handle the facts again, which is prohibited by law.
As to how to identify an incident, the Supreme People's Court issued 1989 "summary of the symposium on economic trials involving Hong Kong and Macao in China coastal areas" (hereinafter referred to as the "summary"), which stipulated that "a party may not file two lawsuits for the same legal fact or legal act with different causes of action". The Summary points out that the criterion for judging "one thing" is "the same legal fact or legal act". The author believes that "the same legal fact" is the specific fact of the case, including the specific time, place, parties and their behavior. Including the legal facts that give rise to the rights and obligations of the parties in substantive law, and the controversial facts that give rise to the rights and obligations of litigation, such as tort facts (enabling the victims to claim tort compensation, etc.). ) and the fact of breach of contract (enabling the parties to claim compensation for breach of contract, etc.). ). Of these two facts, the former is the basis and premise. Without the latter, there will be no litigation interest, and it will be impossible to request litigation relief (that is, there is no civil litigation right). If the legal facts of the civil substantive rights and the disputed facts of the civil relief rights are the same as those of the previous lawsuit, the plaintiff will be informed to the court again, which constitutes a case of two lawsuits, and the court should "ignore" the latter lawsuit.
(2) How to "ignore"
"Don't mention it again" is an expression made from the perspective of the court. "Reason" refers to the court's acceptance, so "no longer reason" should mean that the court will no longer accept it, indicating that the court will not support the plaintiff's prosecution. This is a negative attitude, because the facts of the plaintiff's prosecution have been dealt with by the previous litigation, and the court has made an artificial judgment. If it is accepted again, it will not only increase the litigation burden of the parties, but also waste judicial resources and may make contradictory judgments.
Therefore, if the plaintiff's prosecution violates the principle of non bis in idem, the court should take the form of ruling to deal with it. If it is found that it should not be accepted before filing the case, it shall be ruled inadmissible. If it is found that the case should not be accepted after filing, it shall be ruled to dismiss the prosecution.
Can you decide to dismiss the claim? I don't think so, because the judgment is used to deal with cases in entities; The ruling is used to deal with the procedural issues of the case and does not involve the substantive rights and obligations of the parties. The decision to reject the claim is to deal with the substantive rights of the parties, but the court has already dealt with the substantive rights of the co-defendants once and should not deal with them again. Therefore, the appeal procedure of the parties should be terminated by ruling. This is clearly stipulated in the case of Xuzhou Lubao Traffic Facilities Manufacturing Co., Ltd. v. Xuzhou Huajian Real Estate Development Co., Ltd. and the third party's visit to Anqing House Sales Contract published in the Supreme People's Court Gazette.
Iii. Elements of violating the principle of non bis in idem
The principle of "non bis in idem" is expressed from the perspective of the court, and this principle is also expressed from the perspective of the parties, clearly expressing the meaning that a case can only be prosecuted once. Therefore, the criterion to judge whether it violates the principle of non bis in idem is whether the latter lawsuit and the former lawsuit constitute the same lawsuit. Judging whether the latter act and the former act constitute the same act should be based on the constitutive elements of the act. The three basic elements of civil litigation refer to the parties, the object of litigation and the facts of a specific case. Therefore, to judge whether a lawsuit is the same, we should take the same parties, the same object of litigation and the same facts of specific cases as the "three sameness" standards.
(1) interested parties
Generally speaking, the parties to the former lawsuit and the latter lawsuit are different, including the plaintiff and the defendant. The status of the original defendant is interchangeable (this lawsuit and counterclaim) and does not constitute the same lawsuit. Under special circumstances, although the parties have changed, they still violate the principle of non bis in idem.
1. original defendant status exchange: although one or both parties have changed, it is still the original complaint. The summary of the judgment in the case of trademark ownership transfer dispute between Fenghua Buyun Company and Shanghai Huayuan Company published in the Supreme People's Court Gazette said: "After the people's court tried a civil case according to law and made a legally effective civil judgment, the defendant in this case filed a lawsuit with the people's court on the same fact. Although it is not a duplicate lawsuit, the people's court should still make a ruling of rejection according to the principle of" no longer handling the same matter ".
2. Separation and merger of the parties, etc. : A person who has rights and obligations to the original plaintiff due to the division, merger or cancellation of a legal person or the death of a natural person, or other people who have the same rights and obligations to the original plaintiff due to the transfer of a contract or the transfer of the subject matter. These people are often not the plaintiffs listed in the effective judgment documents, but because they have essentially replaced the substantive and procedural status of the original litigants, they should also be bound by the res judicata of the original judgment.
3. In the necessary litigation, it is also against the principle of non bis in idem to bring some necessary litigation against the litigant or bring different necessary litigation against the defendant based on the facts of the same case.
(2) the object of litigation
If the object of the former lawsuit and the latter lawsuit are the same, it is necessary to distinguish whether they constitute the same lawsuit according to the object of the lawsuit. Generally speaking, the object of litigation refers to the legal relationship or the rights of civil entities that request the court to hear disputes between the parties in civil litigation. The object of litigation is an essential element of any civil litigation case and the basic element to distinguish litigation. [3] The object of litigation determines all the procedural issues of how the case is tried and judged. In other words, the object of litigation is the core of the whole litigation, and all litigation activities are carried out around the object of litigation. Without the object of litigation, the dispute cannot become an independent lawsuit and bring a lawsuit to the court. Under normal circumstances, if the object of litigation put forward by one party is the same as that of another case that has been decided by the court before, then no matter how different the object of litigation put forward by the party is from that of the previous case, the court will also rule that the object of litigation of the latter case is the same as that of the previous case. On the contrary, if the litigant's claim is exactly the same as another case previously decided by the court, the court should still accept it as a new lawsuit as long as the subject matter of the lawsuit is different. How to judge whether the subject matter of litigation is the same?
First of all, we must determine what is the object of each lawsuit. If the litigation objects of two lawsuits are different, they constitute different lawsuits. The determination of the object of litigation should be judged according to the specific content of the legal relationship of civil entities.
1. Confirmation is a lawsuit in which the plaintiff asks the court to confirm whether there is a civil legal relationship between the plaintiff and the defendant, and the object of the lawsuit can be determined according to the plaintiff's claim. The lawsuit of negative confirmation is the plaintiff's denial of the defendant's request, so the object of litigation should be determined according to the defendant's request.
2. The lawsuit of establishment, also known as the lawsuit of change, is a lawsuit in which the plaintiff requests the court to change or eliminate the existing civil legal relationship between him and the defendant. Therefore, the object of litigation is the existing civil legal relationship between the two parties.
3. The action of payment is a lawsuit in which the plaintiff requests the court to order the defendant to pay something or behavior. In the lawsuit of payment, the plaintiff's claim for payment should be the object of the lawsuit of payment.
(3) The specific facts of the case
If the litigation object of this lawsuit is the same as that of another lawsuit, the litigation object shall be determined according to the specific facts of the case.
1. Personnel litigation. Where Party A files a divorce lawsuit against Party B on the grounds of gambling, it shall file a divorce lawsuit again on the grounds of being abused by Party B within 6 months after losing the lawsuit. Q: Should the court accept the post-suit? According to Item 7 of Article 111 of the Civil Procedure Law of People's Republic of China (PRC) (hereinafter referred to as the Civil Procedure Law), a case in which divorce, mediation, judgment and mediation are not allowed to maintain the adoption relationship has no new circumstances or new reasons, and the plaintiff brings a lawsuit within six months, it will not be accepted. However, in this case, the subject and object of the former and the latter are the same, but the latter puts forward new factual reasons and constitutes different causes of action, so it should be accepted.
If Party A brings a divorce lawsuit against Party B, and at the same time puts forward two reasons for Party B's gambling habit and being abused by Party B, does it include two complaints? In this case, B's gambling habit and A's abuse of B constitute the same case fact, while in the former case, B's gambling habit and A's abuse of B respectively constitute a case fact, so it is only a lawsuit.
2. Claims with the same payment content. If the litigant and the litigation object are the same, for example, the plaintiff and the defendant have signed two contracts for the sale of vehicles, the plaintiff has fulfilled the obligation to deliver the goods, and the defendant has not paid for the goods. Are the two lawsuits filed by the plaintiff the same? In these two lawsuits, the parties and the object of litigation are the same, but the facts of specific cases are different, so they constitute two lawsuits.
3. Litigation caused by the master-slave contract. Creditors sue the counterpart according to the master-slave contract. For example, Party A borrows 10,000 yuan from Party B, and Party C is the joint guarantor. B first sued C to the court according to the guarantee contract and won the case, and then sued A and C to the court according to the loan contract. Although the parties to the two lawsuits are different and the litigation objects are different, the facts of the cases are the same, which also violates the principle of non bis in idem.
4. concurrence of claims. In the passenger transport contract, the passenger's body is damaged due to the fault of the carrier. In this case, the fact that the passenger was injured was evaluated by the contract law, and the carrier breached the contract; After the evaluation of Tort Liability Law, the carrier infringes. Then, can passengers file a lawsuit for breach of contract and tort damages? According to Article 122 of People's Republic of China (PRC) Contract Law, the parties have the right to choose to avoid mutual losses.
(d) Compensation for overdue damages.
The claim for compensation for subsequent damages refers to the claim for compensation based on the sequela of injury that was not recognized in the previous litigation judgment, but was put forward by the victim in the latter litigation. This kind of litigation mostly occurs in personal injury compensation cases, and it is impossible to predict the possible sequelae of the injured victim, or after hospitalization, it is necessary to use special medical technology and be hospitalized again after a certain period of time. When the victim filed a lawsuit for the damage that occurred after the first discharge, he filed a lawsuit for the related expenses incurred in the second hospitalization. Although the parties and objects of the two lawsuits are the same, but the specific circumstances are different, it still does not violate the principle of non bis in idem.
In judicial practice, there are two special situations: one is the situation of increasing maintenance due to rising prices after the maintenance judgment takes effect; The other is the case of individual prosecution for compensation for mental damage in infringement disputes. For the first case, it is accepted as another case in judicial practice and is not bound by the res judicata of the previous lawsuit. For the second kind of cases, the judicial interpretation stipulates "inadmissibility".
(5) Litigation against the execution of the settlement agreement.
The final judgment of the case of dispute over the sales contract between Party A and Party B: Party B shall pay Party A 50,000 yuan within 10 days. After the judgment comes into effect, Party A applies for execution, and both parties reach an execution settlement agreement during execution. After that, Party A filed a lawsuit on the grounds that Party B could not perform all the obligations in accordance with the settlement agreement, requesting the court to order the defendant to perform. Whether the court accepts it.
The execution of a settlement agreement is not a new contract, nor does it belong to a litigation contract, because a litigation contract refers to an agreement between the parties whose direct purpose is to produce procedural effectiveness. It can be formed in the course of litigation or before litigation ... but it can never be formed after litigation, but it is a contractual substantive contract. [4] The execution of the settlement agreement has not formed a new relationship of rights and obligations between the parties, allowing the parties to file a new lawsuit based on the execution of the settlement agreement, which obviously violates the principle of non bis in idem. In nature, the implementation of the settlement agreement is only a way to fulfill the effective judgment. In the execution of a case, it is not the end of the case, but the execution procedure of the case is actually suspended. If one party fails to perform the settlement agreement, according to the second paragraph of Article 211 of the Civil Procedure Law, "the people's court may resume the execution of the original effective legal documents upon the application of the other party." In other words, the rights of the parties can still be relieved in the first litigation procedure, so there is no need to start the second litigation.
On the issue of non bis in idem, we should pay attention to the difference between implementing a settlement agreement and another kind of "settlement agreement". If Party C files a lawsuit against debtor D for a loan dispute, after winning the case, Party C fails to apply to the court for execution within the application period, and after the application period expires, Party C and Party D reach a new settlement agreement on the settlement of debts. Now Party C brings a lawsuit again on the grounds that Ding failed to fulfill the settlement agreement. Although the new settlement agreement reached by both parties is the continuation of the original debt in content, it should be regarded as the true intention of the parties and an independent civil legal act. In fact, Ding has created a new responsibility for performance through this agreement, which may be inconsistent with the responsibility determined in the original judgment. Therefore, it is no longer the same in nature as the previous debt. Therefore, C does not sue again on the grounds of "same relationship", and its new prosecution should be regarded as a new claim for creditor's rights, which does not violate the principle of non bis in idem.
Fourthly, the litigation concept embodied in the principle of non bis in idem.
Non bis in idem embodies the professionalism and irreversibility of litigation technology. [5] For the parties, the exercise of the right to appeal must be cautious and prudent, and some litigation skills depend on the services of lawyers, legal workers and other professionals. Litigation is equivalent to a sophisticated machine. For the parties and the court, once the lawsuit starts, it will not stop because of the unilateral reasons of the plaintiff, the defendant and the court (even if the parties apply for withdrawal, they need the permission of the court's ruling). Any mistake in any link may lead to serious consequences of losing the case or breaking the law, and the losing party can only "admit defeat".
If the parties are allowed to sue the same fact repeatedly, and the losing party thinks that they can sue again, they will never respect the court's judgment, stubbornly refuse to execute the judgment against them, and embark on the endless litigation road, which will also stimulate disrespect for the court, thus seriously weakening the litigation efficiency and failing to achieve the value goal of litigation. Late justice is unjust [vi], and repeated litigation will also make the legitimate interests of the parties not protected in time, which is not in line with the value goal of justice and violates the two principles of efficiency and justice in the trial. At the same time, for the defendant, because of the same fact, the fire of litigation will never go out, which is unfair to the court and a waste of litigation resources. The principle of "non bis in idem" means that the effective ruling of the court is final for all parties in the same lawsuit. This principle encourages and requires the parties to exhaust their abilities in the initial litigation according to the rights granted by law, which not only achieves their own goals, but also avoids disrespecting their litigation rights, wasting limited litigation resources and dragging the other party down with litigation.
Legislative defects and suggestions of verb (abbreviation of verb) principle of non bis in idem
China has not yet established the system of non bis in idem. The author thinks that there are three legislative defects in the principle of non bis in idem in China: first, the principle of non bis in idem is not clearly stipulated in the civil procedure law of China, and the meaning of the principle is not fully defined, and the expression of legal principles is flawed; Second, in judicial practice, the provision of item (5) of Article11of the Civil Procedure Law is the legal basis for non bis in idem. However, this provision is only a provision with the negative effect of res judicata [vii], which cannot cover or replace the principle of non bis in idem itself, which makes judges have different understandings of the basic connotation and application scope of this principle, leading to great differences in the handling of many similar cases by courts, affecting the authority of courts and damaging the dignity of the law. Third, the "proviso" clause is single and does not include other repeatable situations, and there are still defects in legislative technology.
Therefore, the author suggests that the principle of non bis in idem should be stipulated in the general principles of the civil procedure law, clearly defined as a principle of civil procedure, and the meaning of this principle should be defined accurately and comprehensively, so as to establish its basic principle position in China's civil procedure law as soon as possible. In addition, this principle should be supported by the system in specific provisions, and it is clear that this principle includes two aspects: "the lawsuit takes effect immediately" and "the judgment is res judicata", that is, in the process of prosecution and acceptance, it is stipulated that the parties shall not file a lawsuit repeatedly for the cases under the jurisdiction of our court, and at the same time, the parties shall not file a lawsuit for the effective judgments that have taken legal effect, including judgments, conciliation statements and rulings.