| From the perspective of comparative law, the "suit filing requirement" provided for in Chinese Civil Procedure Law is equivalent to the "litigation element" in Japanese and German civil procedures. In contemporary Germany and Japan, scholars mostly identify the nature of litigation element on the basis of the trial structure it is relying on:if the trial structure is a consistent compound-parallel structure, the litigation element will be considered as the prerequisite for the judgment of the case; and if the trial structure is a seriatim progressive structure, the litigation element will be considered as the prerequisite for the trial of the case. Nevertheless, the trial structure in China is a mixed structure constructed by taking seriatim progressive structure as main reference and compound-parallel structure as assistance, thus it is inappropriate to simply copy the German and Japanese theories to explain the nature of the suit filing requirement in China. In addition, the docketing procedure in China is an indigenous product originating from the practical needs of solving the suit filing problem, rather than from the litigation element theory of the civil law system. The procedure for adjudicating the litigation element and the suit filing requirement should be decided by the nature and function of such element and requirement. Under the framework of the dual theory of litigation right, suit filing requirement, as a symbol of the state's selection of and interference in disputes, is in essence the requirement needed to implement litigation right. It can be investigated by the court sua sponte and can be decided in advance. Therefore, the suit filing requirement can be adjudicated by the court in advance. |
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