The Evolution Of Adversary System In Civil Practice From1945to2011

Adversary leads to judgment. There's no justice without Adversary. Theexistence/comparison between judge and litigant are the essential parts of all civilprocedure system. Civil adversary system, represented by the judicial system inUK/USA, emphasizes the dominant power of litigant over Judicial Trial procedureagainst the arbitrary of judge, which highlights the essence of fundamental principleof Procedural Liberalism. Civil procedure is a changing field, and by studying thetheory, the value and the historical background, it will help us to understand and graspthe dynamic field and the significance meaning behind the changes. Throughassimilating, referring, or criticizing and reconstructing, all the civil procedurereforming in modern society had to be based on adversary lawsuit pattern. Thisdissertation is trying to give a systematic round review of the history of US/UK civiladversary system in the context of Chinese. Observing the western society and itsoperation of civil trial power based the theory of ideologist.The initial intention of this dissertation is to give a whole picture how civiladversary system works. In the past decades, what changes civil adversary system hadexperienced, and will be facing. Based on the US case management movement as thebreakthrough point, this paper has given a whole idea about the origin of civil adversary system, its vigorous developments and declining. Also it gives a projectanalysis for evidence discovery in pretrial procedure, cross examination in court trialprocedure and jury system, barrister system, explaining the principle of adversaryprocedure, the background and practice environment influenced, particularlydescribed the revision of adversary system itself in recent years. It reviewed theinternal regularity connection between liberalism and civil adversary system, with theprospects for the future development trends of civil adversary system, and how itinspires our civil judiciary reforming in China.One of the goals in this dissertation is to provide some enriched legal documents,with detailed records and data analysis of each part of civil adversary system and theirinternal relationships, trying for the information maximization. Besides the above, weare trying to find the relatively stable essence from the complex diverse phenomena.Through the study, we learnt that the popular and declining of civil adversary systemhave been influenced by the economics, politics and social status varied in specifichistorical stage of each country. Civil adversary system and liberalism are derivedfrom the same origin, and each significant change of liberalism will sooner or laterreflected in judicial system, leads the civil adversary system to develop into next stage.Though the future is unpredictable, civil adversary system is developing along arelatively stable rule, which is trading-offs between justice and efficiency, andbalancing between freedom and equality.There're total six paragraphs in this dissertation.First paragraph is the general description of civil adversary system. It mainlyintroduces the concepts, characters and judicial duty model. Then it particularlydescribed the origin of adversary system and its formal establishment in UK, and howit's been carried forward in USA. Secondly, it gives a politicized interpretation herefor the civil adversary system. The one behind civil adversary is reflecting procedureliberalism, and liberty is the core value factor of adversary system, therefore wereviewed the deep relationship between procedure law and liberty, law and freedom.At last, the author had concluded eight points about the research of adversary system,after defining the concepts of civil adversary system, comparing such concepts and studying the historic development of adversary system.Second paragraph is a brief overview of the evolvement of civil adversarysystem in USA after the Second World War. Since this dissertation is based on thestudy of USA case management system, the content in this paragraph related to USAis one of the key points in this paper. Based on the factors of politics, economics,culture, society and law development etc in USA, there's two phases in USA for thedeveloping of civil adversary system after The Second World War: Booming period in1945~1960s, and declining period in1970s~2010s, this paper gives a generalblueprint to provide the overall concepts about the changing of civil adversary system.The case management movement developed in1960s in USA is a serious challenge totraditional adversary system; therefore the declining of civil adversary system isclosely connected with the rise of case management movement. This part gives a briefintroduction about the developing of USA case management movement, andspecifically introduced how the movement performs, with the analysis of ABA'sStandards Relating to Court Delay Reduction, FJC's Manual for Complex Litigation,Judicial Conference's Civil Litigation Management Manual, The Congress' FederalRules of Civil Procedure, and The Civil Justice Reform Act.Third paragraph gives a general idea about the developing of civil adversarysystem in UK after the Second World War. Since UK is the origin country of civiladversary system, it's indispensable for us to review the UK system. The civiladversary system had been originated in UK, and reached the peak in USA; thereforewe can say that USA has given much more contribution to the system than UK did inmodern ages. Even though, studying the system in UK will help us to compare thesame in USA, and diversifying the study through different points of view. Comparingthe content in second paragraph, this part has less profundity which is just forcomparison.The fourth paragraph is about the changes of civil adversary system in pretrialprocedure after the Second World War. Starting from this paragraph, detailed reviewsare being given to each regime of the system. Since pretrial procedure is the essentialpart of present civil procedure and the main scope of case management movement, this part is one of the key points in this paper. This part composite the elements ofregulation changes, case development, scholars' comments and relevant data etc, tosupport the study and explanation for each regime in details. It consist with eightsections inc. the summarization of civil pretrial procedure, nonsuit, pretrial conference,disclosure, discovery, summary judgment, ADR, settlement, legal execution, andclosure, while six of them are related to pretrial procedure. The conclusion of thisparagraph is: though laissez faire civil adversary system is basically exited from thepretrial procedure, and the pretrial procedures in UK/USA are mostly dominated bycase management mode, pretrial procedure is still not changing to inquisitorial systemwhich the court takes over the jobs of litigant totally, while the litigant still takes careof its own suit, and the court is mainly concentrating on the procedure controlling.The strengthening of judge power is for monitoring and controlling the proceduredevelopments. So the pretrial procedure in UK/USA is managerial judiciary mode,and this mode is indeed a revised modern civil adversary system, which admit andaccept necessary judicial intervention, balancing the needs of rights protection forlitigant and efficient usage of the whole judicial resources, concerning about both thepersonnel interests and social interests, is a kind of individual value priority with theconsideration of social benefits.The Fifth paragraph is about the change of civil adversary system in court trialprocedure. Case opening procedure is one of the most important procedures in civiladversary trial, which consist both oralism and adversary system. This paragraphmainly gives the sort and summary of case management rights during court trial inUK and USA, choosing civil jury system and cross examination system for specialstudy. By studying of these two typical systems, and their serial changes after theSecond World War, with the presentation of many law rule changes, case developmentand data, this part clearly described the moving process of civil adversary in court trialprocedure. The conclusion of the paragraph is: Court trial procedure is not theessential part of civil procedure any more. Due to the mass decreasing of casescoming into court trial procedure, its status had been clearly downgraded. Even insome cases involving court trial procedure, due to the intervention of case management movement and efficiency thoughts, starting from the pretrial procedureto the court trial, it affects the traditional civil adversary system in court trial.Comparing to the pretrial procedure, court trial is the reservation for traditional civiladversary system, which still has the antagonism.The Sixth paragraph is evaluation and revelation of civil adversary system inUK/USA. This part is mainly a brief summary for paragraph2and3(MacroDescription),4and5(Micro research of the systems). It contains macroscopic aspectssuch as the future of civil adversary system, evaluation of civil adversary system, thereference of USA civil adversary system to China, and specific system constructionsuch as revelation of civil adversary system, whether the civil adversary systemshould be applied in China, and the adversary system regarding the evidentialinvestigation in court, the revelation of Manual for Complex Litigation and CivilLitigation Management Manual to our civil judicial reforming etc. Last but not theleast, the conclusion of this paper: the development of civil adversary system is like adrop of water. Observation of the droplet will reflect the big sky of liberalism which isexperiencing all changes.