I. Basic understanding of the principle of non bis in idem
Now the principle of non bis in idem in civil litigation theory contains two meanings: first, litigation is effective, that is, the parties may not sue again for a case that has been prosecuted or is under litigation, even if they sue again, the court may not accept it; Second, after the judgment comes into effect, a case has res judicata, and the parties may not sue again on the same fact and reason for the disputed legal relationship between the two parties. Since the same incident has been accepted or adjudicated 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 of the parties and the litigation.
"non bis in idem" has always been regarded as a "principle" in civil litigation. In judicial practice, the court's judgments are also reasoned on the principle of non bis in idem, but there is no clear and specific provision on non bis in idem in our civil procedure law. Therefore, in practice, the grasp and application of the meaning of non bis in idem is rather confusing. Different courts, even judges of the same court, have not formed a unified understanding and standardized operation on what is "non bis in idem" and how to "non bis in idem". The improper application of this principle may not only affect the res judicata of a adjudicated case, but also hinder the due litigation rights of the parties.
Second, understanding of the principle of non-bis in idem
How to understand non-bis in idem mainly involves two points: 1. What is "non-bis in idem"; 2. How to "ignore"?
(1) What is "one thing"
The semantic understanding of "one thing" is "the same thing" or "the same fact". The dispute caused by "one thing" was finally resolved through the substantive handling of the court, and then it was requested to be handled by the court for the fact, which was prohibited by law.
as to how to determine "one incident", the Supreme People's Court issued the Summary of the Symposium on Economic Trials Involving Foreign Affairs in the Coastal Areas of China (hereinafter referred to as the Summary) in 1989, which stated that "the parties shall not file two lawsuits for the same legal fact or legal act with different causes of action". The Minute states that the criterion for judging "one thing" is "the same legal fact or legal act". The author thinks that "the same legal fact" is the specific facts of the case, including specific time, place, parties and their behaviors. Including the legal facts that produce the rights and obligations of the parties in substantive law, and the dispute facts that produce the rights and obligations of litigation, such as infringement facts (enabling the victims to claim compensation for infringement, etc.) and breach of contract facts (enabling the parties to claim compensation for breach of contract, etc.). Of these two kinds of facts, the former is the basis and premise. Without the latter, there is no interest in litigation, and therefore, there is no claim for litigation relief (that is, no civil litigation right). If the legal facts of the civil substantive right and the dispute facts of the civil relief right are the same as those of the former lawsuit, the plaintiff will be told to the court again, which constitutes a case of two lawsuits, so the court should "ignore" the latter lawsuit.
(II) How to "ignore"
"ignore" is an expression made from the perspective of the court. "Reason" refers to the court's acceptance, so the meaning of "no longer reason" should be that the court will no longer accept it, indicating that the court will not support the plaintiff's prosecution, which is a negative attitude, because the facts of the plaintiff's prosecution have been handled by the previous lawsuit, and the court has already 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 a ruling to deal with it. If it is found that it should not be accepted before filing the case, it will be ruled that it will not be accepted. If it is found that it should not be accepted after filing the case, it should be ruled that the prosecution should be rejected.
can you decide to dismiss the claim? The author thinks that it can't, because the judgment is used to deal with the case in entity; 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 litigation request is to deal with the substantive rights of the parties, but the court has already dealt with the substantive rights of the parties in the same case once and should not deal with it again. Therefore, we should adopt the form of ruling to terminate the procedure of the parties' complaint. This is clearly defined in the case of Xuzhou Lubao Traffic Facilities Manufacturing Co., Ltd. vs. Xuzhou Huajian Real Estate Development Co., Ltd. and the third party You Anqing's housing sales contract dispute published in the Supreme People's Court Gazette.
III. Identification elements of violation of 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, which clearly expresses the meaning that a case can only be sued once. Therefore, the criterion for judging whether the principle of non bis in idem is violated is whether the latter lawsuit and the former lawsuit constitute the same lawsuit. To judge whether the latter action and the former action constitute the same action should be based on the elements of action. The three basic elements of civil action refer to the parties, the object of action and the facts of a specific case. Therefore, to judge whether a lawsuit is the same, it should be based on the "three similarities" standard of the same parties, the object of action and the facts of a specific case.
(I) Parties
In general, the parties of the former lawsuit and the latter lawsuit are different, including the plaintiff and the defendant, and the status of the original defendant is exchanged (this lawsuit and counterclaim), which 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 lawsuit. The summary of the judgment on the case of trademark ownership transfer dispute between Fenghua Buyun Company and Shanghai Huayuan Company published in the Supreme People's Court Gazette states: "After the people's court has tried a civil case according to law and made a legally effective civil judgment, the defendant in the case has brought a lawsuit to the people's court for the same fact. Although it is not a repeated lawsuit, the people's court should still make a ruling of inadmissibility according to the principle of" no longer dealing with the same matter ".
2. Separation and merger of parties, etc.: People who have the rights and obligations to the original plaintiff due to the separation, merger, cancellation of legal person or the death of natural person, or other people who have the same rights and obligations to the original plaintiff due to the transfer of contract or the transfer of subject matter, etc. These people are often not plaintiffs listed in the effective judgment documents, but they should also be accepted because they substantially replace the original litigant's substantive and procedural status.
3. In necessary litigation, it is also a violation of the principle of non bis in idem to separately file a lawsuit with some necessary litigants or a lawsuit with different necessary litigants against the defendant based on the same case facts.
(II) Object of Litigation
If the subject 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 litigation. It is generally believed that the object of litigation refers to the legal relationship or the rights of civil entities in which disputes between the parties in civil litigation request the court to try. The object of litigation is a must in any civil litigation case, and it is the essential element to distinguish one lawsuit from another. [iii] 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 subject matter of litigation, the dispute cannot be an independent lawsuit, which is filed with the court. Under normal circumstances, if the object of litigation put forward by a party is the same as that of another case that has been adjudicated by the court before, no matter how different the claim put forward by the party is from that of the previous case, the court will also rule that the object of litigation in the latter case is the same as that in the former case. On the contrary, if the litigant's claim is exactly the same as that of another case adjudicated by the court before, 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 the litigation object of each lawsuit is. If the litigation objects of two lawsuits are different, they will 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. A lawsuit of confirmation is a lawsuit in which the plaintiff requests the court to confirm the existence or non-existence of a certain civil legal relationship between him and the defendant, and the object of the lawsuit can be determined according to the plaintiff's claim. However, the action of negative confirmation is that the plaintiff denies the defendant's request, so the object of action should be determined according to the defendant's request.
2. The lawsuit of formation, also known as the lawsuit of change, is a lawsuit that 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 the action that the plaintiff requests the court to order the defendant to pay something or behavior. In the action of payment, the plaintiff's claim for payment should be taken as the litigation object of the action of payment.
(III) Specific case facts
If the subject matter of this lawsuit is the same as that of the other lawsuit, the lawsuit should be identified according to the specific case facts.
1. Personnel litigation. If Party A files a divorce lawsuit against Party B on the grounds of gambling, it will 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 the People's Republic of China (hereinafter referred to as the Civil Procedure Law), divorce and mediation are not allowed, and if there is no new situation or new reason in the case of maintaining the adoption relationship through judgment or mediation, and the plaintiff files 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 brings forward new factual reasons and constitutes different complaints, so it should be accepted.
If Party A brings a divorce suit against Party B, and at the same time, it points out that Party B has gambling habits and is abused by Party B, does it include two complaints? In this case, B's gambling habit and A's abuse by B constitute the same case fact, while in the previous case, B's gambling habit and A's abuse by B respectively constitute a case fact, so it is only a lawsuit.
2. suit with the same payment content. If the parties and the subject matter of the lawsuit are the same, such as the plaintiff has signed two contracts with the defendant to buy and sell vehicles, the plaintiff has fulfilled the obligation to deliver the goods, and the defendant has not paid the purchase price. 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 sued the counterpart according to the master-slave contract, for example, A borrowed 1, yuan from B, and C was the joint guarantor. After B first sued C to the court according to the guarantee contract and won the case, it also sued A and C to the court according to the loan contract. Although the parties in the two lawsuits are different and the litigation objects are different, the facts of the case 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 injured 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 passengers can file a lawsuit for breach of contract and a lawsuit for tort damages? According to Article 122 of the Contract Law of the People's Republic of China, the parties have the right to choose and avoid the disadvantage of winning both lawsuits.
(IV) The problem of the claim for compensation for subsequent damages
The claim for compensation for subsequent damages refers to the claim for compensation based on the sequela of the injury that was not recognized in the judgment of the previous appeal but was put forward by the victim in the later appeal. Most of these lawsuits occur 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 be hospitalized again after a certain period of time by using special medical technology. When the victim sued for the damage that had occurred after the first discharge, he sued for the related expenses arising from the second hospitalization. Although the parties and the subject matter of the two lawsuits were the same, the specific circumstances were different, which still did not violate the principle of non bis in idem.
In judicial practice, there are two kinds of special cases: one is the case that the maintenance fee is increased due to the rising price after the judgment on child maintenance comes into effect; The other is the case of separately suing for compensation for mental damage in infringement disputes. For the first kind of cases, it is accepted as another case in judicial practice, and it is not bound by the res judicata of the previous lawsuit. For the second kind of cases, the judicial interpretation stipulates that it is "inadmissible".
(V) Litigation against the execution of the settlement agreement
The final judgment of the case of the dispute over the sales contract between Party A and Party B: Party B shall pay Party A 5, yuan in ten days. After the judgment came into effect, Party A applied for execution, and during the execution, both parties reached an execution settlement agreement. Later, Party A filed a lawsuit on the grounds that Party B could not fulfill all its obligations in accordance with the settlement agreement, requesting the court to order the defendant to perform. Whether the court accepts it.
the execution of the settlement agreement is not a new contract, and it does not belong to the litigation contract, because the litigation contract refers to the agreement between the parties whose direct purpose is to produce the effect in the procedural law. It can be formed during the litigation process or before the litigation ... but it can never be formed after the litigation is over, which is a contractual substantive contract. [iv] The execution of the settlement agreement has not formed a new relationship of rights and obligations between the parties, so it is obviously against the principle of non bis in idem to allow the parties to file a new lawsuit based on the execution of the settlement agreement. In nature, the execution 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 in a suspended state. If one party fails to fulfill 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 document 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 brings a lawsuit against Debtor D for a loan dispute, after winning the case, Party C fails to apply to the court for enforcement within the execution application period. After the application period expired, C and D reached a new settlement agreement on the settlement of the debt. Now Party C has filed a lawsuit again on the grounds that Ding failed to fulfill the settlement agreement. Although the new settlement agreement reached by the two parties is a 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 a new responsibility for performance through this agreement, and this responsibility may be inconsistent with the responsibility determined in the original judgment. Therefore, it is no longer identical with the previous debt in nature. Therefore, C is not based on the "same relationship" to sue again, its new.