| Summary: | 碩士 === 國立臺北大學 === 法學系 === 94 === This thesis comprises six chapters. Chapter One introduces the three types of Preclusion: preclusion of accusatory right, Issue preclusion and Claim preclusion, including the meaning, feature, rationale, elements and defects of the preclusion. The author starts with a comparative legal approach mainly, as well as historical and Empirical Study on cases cited from Taiwan, Japan and German courts.
Chapter Two begins with an introduction of the “Good Faith Principle in Procedure Law”, which is the theoretical basis of the preclusion. The first section contains the origins, concepts, effects of violation, trend of codification around the world, and examples of this principle. Section Two to Section Four explain the foundations of preclusion effect separately. “Preclusion of accusatory right” is based on the good faith principle, and it requires the parties to allege in proper time to maintain the stability of a lawsuit and save judicial resources. “Issue preclusion” comes from the parties’ duties of facilitating the litigation, and the court may dismiss the arguments if not proposed in proper time. At last, Claim preclusion originates from Res judicata, or the idea of “resolving conflicts at a time”, which bars relitigation of cases between the same parties in court, and the court can not render a judgment again.
Chapter Three focuses on the “preclusion of accusatory right”, including the meaning, application, waiver and forfeiture, exception and the effect of preclusion of accusatory right.
Chapter Four explains “Issue preclusion” further more. Section one introduces the concept of “alleging-in-proper-time”, which amends the defects of “alleging freely” and “alleging-in-legal-order”. According to “alleging-in-proper-time” theory, the parties are under obligation to facilitate the litigation. Section Two discusses the effects if the parties violate the obligation to facilitate the litigation, and how the courts dismiss the arguments they propose and relevant regulations. Section three and Section Four explain the preclusion in preparatory and the appellate procedure. Section Five focuses on the relation between the interpretation of the court and the Claim Preclusion. Section Six comments some recent cases form the Supreme Court of our country.
Chapter Five discusses “Claim preclusion” and the function, patterns, the duality, the time limitation or the scope of Res judicata. In some special situations, Res judicata is not applied if it is impossible to expect the parties alleging in proper time, and this is to protect the civil right if the parties and to follow the good faith principle.
Chapter Six is the conclusion. To sum up what we have learned in previous chapters, the author made the conclusion from the connotation, origin, the fundamental idea and value of preclusion in civil procedure, the contradiction and the modification of the three types of preclusion.
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