Study Of The Right To Be Heard In Civil Procedure

The right to be heard originated from the German Basic Law is an important support for civil litigation system in civil law system.For a long time,due to the lack of relevant theoretical research and the influence of the state-oriented ideology and other reasons,the Constitution of China has not stipulated the right to be heard explicitly.On the provisions of the right to be heard is only scattered in some sporadic terms in the Civil Procedure Law.The absence of legislation directly leads to the difficulty of obtaining comprehensive protection of the right to be heard in practice.It is reflected in the following respects: the defects of the service system make that the rights to be noticed of the parties are difficult to be realized;the imperfections of the evidence exchange system make the protection of the rights to get informed of the parties are not sufficient;The irrationality of the system of proof time makes the lack of the right of statement of the parties;the imperfections ofthe provisions of the interpretation obligation and the publicity of judge's mental impression make that the surprise attack of judgment is frequent.The right to be heard is the legal right to give the parties full opinions on the facts,evidences and laws on which the civil proceedings are based,and to ask the court to listen and consider those opinions carefully and make the decision at last.It is not only a basic right of procedure,but also a compound litigation right that contains multiple rights,and should be the basic principle of procedural law.The legal basis of the right lies in both the internal considerations of human dignity and the external requirements of the rule of law.The full content of the right to be heard includes the right to get informed,the right to present,the right of statement,the right to be considered and the right to prohibit the surprise attack of judgment.After comparing the legislative provisions and guarantee status of foreign countries which have complete legal systems,it is not difficult to find out that the degree of emphasis on the right to be heard,the deepening of theoretical research and the range of protection are far superior to our country.Germany's protection model of the right is particularly representative and can be used for reference.The protection modelsof the Britain,Americaand China Taiwanprovide a multiple perspective for the improvement of related systems for guaranteeing the right to be heard of china.According to the present judicial situation,the right to be heard should be legalized in the Constitution and the Civil Procedure Law of China,which should be clearly defined as a fundamental right in the Constitution and a basic principle in the Civil Procedure Law.Secondly,we should improve the guaranteesystem of the right to be heard,and the pre-guarantee is reflected in the following aspects: to reform the service system through reforming the service subject,the way of service and forming the relief of service;to reform the evidence disqualification system through the conditional relaxation of the system of proof time,the perfection of the evidence exchange system,the explicitation of the conditions for the realization of evidence disqualification,and so on;by expanding the scope of application of the judge's interpretation to clarify the judge's interpretation obligation;by expanding the scope and clearing the ways and principles of the publicity of judge's mental impressionto further strengthen the obligation of the publicity of judge's mental impression.The guarantee after the event of the right to be heard is that it is necessary to construct a "double track" mode of procedural protection and constitutional protection in China by drawing lessons from the relief system of foreign countries especially the Germany which include the following aspects: the claim for the violation of the right to be heard should be regarded as the legal causes of the appeals trial and retrial;buildingthe system of hearing and objection combined with the application of reconsideration system in China's civil litigation.The purpose of these relief systems is to make the protection of the right to be heard more powerful and more diversified in the way.