The Reflective Effect-From the Perspectives of Procedural Law and Substantive Law
Date Issued
2010
Date
2010
Author(s)
Lee, Yi-Ting
Abstract
The “reflective effect” theory as a theory of civil final judgment effect is advocated by Germen scholars and adopted by some of the academics in Japan. In our country, the academics and practitioners take different attitude towards the use of reflective effect. Most of the former positively embraced it, but little relevant adjudication can be found in judging practice. In order to clarify the content and purpose of reflective effect to evaluate the appropriation of theory reception, provide a guideline and suggestions for judging in practice, this thesis will from the perspectives of procedural law and substantive law examine the theoretical formulation of “positive opinions( recognizing the reflective effect )”, “negative opinions ( denying it )”, and the opinions that “regard it as extension of res judicata”, find out how well can their arguments meet the procedural basic requirements and if there is any jurisprudence basis ( necessity & legitimacy ) for extending the binding effect of civil judgment, and conduct a study on the reflective effect responding to questions such as “What is the reflective effect?”, “Why recognize it?” , “Should it be recognized?” to expect to broaden as well as deepen the study on binding effect of adjudication.
This thesis basically focuses on the above three questions. However, as far as subjective scope of judgment effect is concerned, in 2003 our country''s civil procedure law added the complementary measures of pre-and-post procedural protection for giving balanced overall consideration to the principles of resolving related disputes at once and due process. So people who do reasurch on subjective scope of judgment effect like reflective effect shouldn’t ignore the pre-and-post procedural protection system of new law. Furthermore, after reviewing and analyzing the theories in German, Japan, and our country, this thesis from the dualistic perspectives of procedural law and substantive law, advocates the “res judicata on the basis of subordinate or implicated relationship” with the pre-and-post procedural protection system to put the basic principles of procedural and substantive law into consideration. Consequently the scope of this thesis also cover: “Under our law how to delimit the subjective scope of judgment effect?” , “What is its jurisprudence basis? Does it have relation with the substantive law?” , “Can we recognize res judicata on the basis of subordinate or implicated relationship? In what kinds of cases can we recognize it?” , “How to appropriately apply the procedural protection system of new law?” , and so on.
The thesis totally has six chapters. Except that chapter 1 is about objective of study and question awareness, chapter 6 is the conclusion, approximately it can be divided into three parts. The first part ( chapter 2 & chapter 3 ) is to classify the discussions about reflective effect as three opinions ( recognizing the reflective effect, denying it, and seeing it as extension of res judicata), then retrospectively introduce the situation of the debates, and answer “What is the reflective effect? Why recognize or deny it? ” Subsequently, this thesis will critically review each viewponint, oppose the reflective effect theory, query the solutions of negative opinions that can’t take full care of the necessity of extension, and strengthen or modify the the theoretical formulation about legitimacy of extension of res judicata proposed by scholars. Here the author refuses to recognize the reflective effect, but responds to the question: “Should it be recognized ?” by approving the conclusion that the reflective effect actually is extension of res judicata through “the relationship of substantive law and due proess” and “the pre-procedural-protection” to avoid sacrifices caused by the negative opinions.
The second part( chapter 4 ) supported by above three chapters and ruminating the relation of substantive law and procedural law in the area of judgment effect, is to agrue that: from the perspectives of the procedural law and sbstantive law, it is possible to reflect the order of substantive law on civil procedure and combine the legal order with procedural protection on its means’ aspect ( proctects the property right and freedom) to recognize the extension of judgment effect. Accordingly, the author advocates “res judicata on the basis of subordinate or implicated relationship” , applies it in the joint and several libliaty cases which are typical cases of the reflective effect, and further connects it with the complementary measures of pre-and-post procedural protection to most properly pursue the balance of substantial and procedural interests.
In the third part ( chapter 5 ), this thesis analyzes the cases thought to be about the reflective effect, being of the opinion that we can appropriately resolve the disputes in most of these cases with constitutive-elements-effect, res judicata on the basis of subordinate, implicated relationship or litigation-undertaking, and the system of pre-and-post procedural protection. Compared with the positive, negative opinions and the arguments of non-mutual res judicata, those solutions can meet the basic requirements of procedural law and substantive law much better. But the reflective effect or other extension of judgment effects won’t arise in the rest of these cases due to no grounds for the extension of judgment effect. In short, from the analysis of cases it isn’t only unnecessary but unsuitable to apply the reflective effect so that we can repond the question: “Should it be recognized ? ”
Subjects
the reflective effect
extension of the subjective scope of judgment effect
necessity and legitimacy of extension
the perspectives of procedural law and substantive law
implicated or subordinate relationship
pre-and-post procedural protection
Type
thesis
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