The Lecture on the Right of Claim Retrieval and the Determination of the Object of Litigation held successfully in the Law School
Our law school was gladded to have Liu zhewei, associate professor of Peking University, to attend our beautiful campus on the afternoon of April 29, 2019, bring a wonderful lecture to teachers and students of the law school. The theme of the lecture was “The Right of Claim Retrieval and the Determination of the Object of Litigation”.This lecture chaired by Associate Professor Ma ding, Professor Chen aiwu and Associate Professor Pan xi joined the lecture to share their comments, besides that more than 50 graduate students and doctoral students attended the lecture.
The lecture was divided into five parts. In the first part, Professor Liu presented a case of Mobile Phone to enlighten the reflections upon the right of claim and the object of litigation.
In the second part, Professor Liu introduced two steps of right of claim retrieval and displayed the specific application of the steps in the case of Mobile Phone. The two steps are determining the type of claim and finding the basis of right of claim. The types of claims mainly include: claim for delivery, claim for restitution, claim for damages, claim for compensation, claim for reimbursement of expenses and claim for inaction. Finding the basis of right of claim means looking for legal provisions. The right of claims in Civil Law mainly include: right of claim in contract, right of claim in quasi contract, negotiorum gestio, right of real claim, unjust enrichment, tort compensation and other statutory right of claims.
In the third part, Professor Liu analyzed and interpreted Article 119, paragraph 3 of Civil Procedure Law of the People’s Republic of China, including literal interpretation method and another interpretation method based on specific claims, facts and reasons. Professor Liu considered that the former interpretation method has some defects, while the latter one is more reasonable.
In the forth part, Professor Liu explained the object of litigation, which may include the claims of the plaintiff, the legal basis put forward by the plaintiff and the defendant, the facts claimed by the plaintiff and the defendant and the evidences brought forward by the plaintiff and the defendant. The emphasis on the object of litigation is related to the basic thinking that the civil procedure mainly develops in the order of claim, legal basis, factual basis and the means of proof. During the development of the theory of litigation object, there mainly exists two theories, the theory of old substantive law and the theory of procedural law, which Professor Liu preferred the former theory.
In the last part, Professor Liu raised other related issues that might arise, such as whether the right of claim must be chosen at the filing stage? Whether the right of claim must be chosen accurately? How do parties concerned who do not understand the law choose the right of claim? Is it possible to select multiple claim bases at one time?
In the discussion section, Professor Chen aiwusaid that the lecture today was not only related to teaching work, but also to the training of students’s legal thinking. The two most profound understandings are that legal learning should combine civil law with civil procedural law and the study of procedural law should be refined. Nowadays, many judges' judicial activities are rather rough and vague, and they still need the guidance of litigation theory. Although there are many different theories on the object of litigation, the most important thing is to look at the issue in accordance with the reality.
Associate Professor Pan xi also put forward six points of his own experience on the lecture. Firstly, substantive law should be combined with procedural law. Secondly, theoretical learning should be combined with practical training. Thirdly, legal retrieval should be combined with legal interpretation. Fourthly, learning method should be combined with judicial practice method. Fifthly, academic research should be combined with classroom teaching. Lastly, current law practice should be combined with the ideal feeling of law.
During the Q&A session, Professor Liu and the classmate discussed the way of judge judges. Professor Liu thought that when judges have heard the case substantially, the prosecution can only be dismissed by judgement.
At the end of the lecture, Associate Professor Ma ding gave a brief summary of the lecture and expressed his expectation that Professor Liu wouldcome to our school in the future. So far, the lecture which lasted more than two hours ended with warm applause and the students expressed that they had acquired much knowledge from this lecture.