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A Research On The Procuratorial Power Distribution In Civil Procedure

Posted on:2011-03-03Degree:DoctorType:Dissertation
Country:ChinaCandidate:S B YinFull Text:PDF
GTID:1116330338972695Subject:Procedural Law
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Traditional Civil Procedure Theory holds that civil trial is an action based on the both sides of the plaintiffs and the defendants, in which the judges are neutral. In such a relationship between right (power) and obligations, the prosecution seems hardly to gain a foothold. But the public interest can not be protected in time owing to the lack of prosecutor, and meantime the plaintiffs and the defendants are not equal in fact due to the judicature anomie. Thus, the procuratorial power distribution in civil procedure is needed in practice.At present, the problem is that there are numerous disputes between the academia and practical circles, which focus on the foundation and procedure of the procuratorial power distribution. Therefore, the researches which contain the foundation of the procuratorial power distribution in Civil Procedure, the type of Prosecutorial Power in Civil Procedure, the standardization of the procuratorial procedures in civil procedure are the important issues in the Civil Procedure law. In this paper, I will analyze these issues by using comparative research methods, standardize research methods and empirical methods. The paper is divided into five chapters.Chapter I The connotation and the foundation of the procuratorial power distribution in Civil Procedure. Firstly, the chapter will define the connotation of the procuratorial power distribution and analyse the feature of the existing procuratorial power distribution in Civil Procedure, to provide a basic range for expounding the distribution and programming of the procuratorial power distribution later. This paper maintains that the procuratorial power distribution in Civil Procedure is to solve several issues as follows: Which power should be distributed to the procuratorates in Civil Procedure? What is the relationship between these powers and the litigious rights or the jurisdiction of the court like? How to execute the prosecutorial Power in civil procedure? At the same time, the paper also analyses the Constitutional Foundation, the theoretical and practical basis of the procuratorial power distribution in civil procedure.Chapter II A Comparative study of the procuratorial power distribution under different regimes Stones from other hills may serve to polish the jade of this one. In this chapter, I will systematically summary the contents of the Civil Procuratorial Power under different regimes such as Autocratic Government, Democratic Regime and Congress System by using the comparative studying method. Besides,I will research how to dispose and coordinate the relationship between Civil Procuratorial Power and the litigious rights or the jurisdiction of the court under different regimes,to provide reference for the the procuratorial power distribution in our country's civil procedure.Chapter III The fundamental principles of the Civil Procuratorial power distribution and relationship between the civil procuratorial power and rational categories in civil procedure. After analyzing the content, basis and purpose of the procuratorial power distribution in civil procedure, this chapter will put forward the fundamental principles of the procuratorial power distribution in civil procedure,which contains the principle of unity of enacted laws, the principle of restrict and balance of power and the litigation economy principles. Then, the paper will try to coordinate the relationship between the procuratorial power and litigious rights as well as the relationship between the procuratorial power and the jurisdiction of the court, which lay a solid foundation for building a scientific and rational legal relationship of civil procuratorial.ChapterlV The distribution and programming of the Procuratorial Authority's Power of Taking a Civil Action With the development of modern society and the transition of economy, the traditional theory such as the qualification of the Proper Party of parties theory and Interest of litigation theory can't meet the needs of protecting the public interests. Thus, to give Power of Taking a Civil Action to the prosecution has been widely recognized by both the academia and practical circles. This chapter will not only discuss the necessity of the establishment of the Procuratorial Authority's Power of Taking a Civil Action,but also try to precisely design the basic procedures of the Procuratorial Authority's Power of Taking a Civil Action to make the Procuratorial Authority's Power of Taking a Civil Action to implement and regularize.Chapter V The reasonable distribution and improved procedures of procuratorial organ's supervise power The power of supervision has been authorized to Procuratorial Organ in the existing Code of Civil Procedure, but it has many deficiencies such as the narrow scope of Procuratorial Organ's, the fuzzy supervisory procedures and the unsatisfactory supervision effect. The paper maintains that we should take different measures to different Supervision objects. To supervise the Magistrates conduction of the court which could be rectified by retrial procedure, we could take the way of appeal. Otherwise, we could take the way of correcting illegal action, attorney recommendations, or reviewing decisions. To supervise the judges' violations of the law and discipline, we could take the reprimanded way.
Keywords/Search Tags:civil litigation, the procuratorial Power, civil right of prosecution, litigation supervision power, distribution
PDF Full Text Request
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