Social Sciences in China (Chinese Edition)

No.6, 2015

 

The Human Rights Character of the Right to Sue—From the Perspective of Historical Evolution

(Abstract)

 

Wu Yingzi

 

The right to sue is thought to have originated from the actio of Roman law, but in fact this right was no more than a judicial procedure, a privilege that a particular entity was allowed to invoke under particular conditions. Different rights to sue involved proceedings (observances) applicable to different claims. The doctrine of the right to sue completed its rights-oriented transformation in civil law. In public law, it was elevated from a relationship between private individuals to one between the citizen and the state, realizing a revolution in the idea of the right to sue. After the Second World War, both the new natural law school and the various theories of human rights prospered, providing a theoretical foundation for the emergence of theories on the right to sue. The theory of procedural justice, especially legal proceduralism, has allowed these theories to mature. A judicial structure founded on the civil rights view of the right to sue requires that full respect be given to the status of the subject of the right to sue and includes a mechanism for negotiation between the right to sue and the right to a trial. As a human right, the right to sue is absolute, and no conditions can be attached to its exercise. It cannot be given up, and any contract in which it is ruled out is invalid under procedural law. The right to sue cannot be denied, it can only be consumed by use. In theories of the right to sue, the purpose of civil proceedings should be set as “solving disputes fairly.”