The Enlightenment Upon Historical Change Of Family Trial Practice Of Yongji County, Shanxi Province

Litigation files have a very high historical and legal value as they faithfully reproduce the whole process of litigation. The litigation documents involved can not only portray the legal and litigation concepts of participants in the procedures but also reproduce clearly the process by which judges make the decision. In recent years, scholars pay more and more attention to the importance of litigation files. Professor Philip C. C. Huang and Professor Tian Tao have already made the relevant research. Professor Philip C. C. Huang considers that, after the foundation of the People's Republic of China, legal traditions were abandoned and the laws made in the Kuomintang Times; after the Reform and Opening-up, Mao's revolutionary traditions and traditional laws were abandoned, and wholesale Westernization. This opinion of Professor Philip C. C. Huang raises my thought. Whether this view is compliant with the relevant aspects of the legislative and judicial practice?The writer shall be in good command of the history of the legislative and judicial practice since1949, to reply this question and make a persuasive argument. However, in my opinion, it is too hard to handle such a huge question; accordingly, I choose to focus on the longitudinal section of the legislative and judicial practice, for the purpose of "ab una disce omnes", which it is so-called family judicial practice in the Papers, commonly in name of the judicial practice of family and marriage.The main reasons of my research in the area is that the judicial practice of family and marriage is close to everyone's daily life, and the most powerful link between Chinese traditional law and the Western law introduced after the Reform and Opening-up. Furthermore, the cause of my research is also related to the reform concerning the trial form of civil case, and the request on the independent in the judicial procedures of family and marriage from the circles of Law of Civil Procedure.For the purpose of deep research in the family litigation, the author chose to research on the family litigation files of the Court of Yongji County, Shanxi Province. I attempt to clear up the family litigation files of the county during fifty years (1949-1999) since the foundation of PRC, in the clue of the different process on the behalf of the kinds of texts, and research historical changes to the process of lodging complaints as well as trial procedures to the decision-making process. I then examine the historical changes of litigation culture involved in the litigation practice. Finally, based on the aforesaid study, some suggestions are put forward for reform of civil trial procedures and the legislative advice from the circles, in the view of litigation culture and social reality.The Paper consists of the Introduction and Main body, and Main Body includes six Chapters.In the Introduction, the author briefly introduces the origin of the problem and the significance of the topic selection; then introduces the general situation of study regarding family litigation; and finally focus is drawn to the litigation files in Yongji County. The author also briefly introduces research methods, mainly the measurement statistics and case study, additionally with comparative study and textual study, etc.In Chapter1, the writer makes all efforts to comprehensively introduce the laws of the family and marriage, the laws of civil trial procedures, the general situation of family litigation in Yongji County, and then make research on the litigation files of the County on the above mentioned basis.In Chapter2, the writer successively makes sampling survey on the summons, bill of complaints, and the introduction letter. The notes of the summons raise the thoughts of author to the traditional litigation culture. The study on the historical change of the form and content of the bill of complaints implies the gap between the legislation and judicial practice. The introduction letter, which played a certain role in the judicial practice before1990s, in specific respect, verifies the development and withering away of pre-lawsuit mediation organizations.In Chapter3, the writer respectively studies the record of inquiry and court record in family litigation files (1949-1999) of Yongji County, Shanxi Province. Record of inquiry records the judicial procedure of family litigation prior to the reform of the judicial procedures, and fully embodies human nature and the pursuit of the facts of the case of natural of the judge before the reform and opening up. During the transit phase from the start to the fully development of the reform of the judicial procedures, the record of inquiry still has some function in the litigation. Since the mid-1990s, court records shows that the court investigation, instead of the earlier inquiry on the parties, to become the main way of investigation and evidence collection in the trial. The cross-examination, the court debate, and last statement of the parties tend to be superfluous. The judges often make the decision on the basis of the statements of parties, for the parties have no evidence in most family litigation. The parties often partly or wholly give up the debate rights, and in case of the absence of the defendant in the court, the debate right of the plaintiff cannot be protected effectively.In chapter4, the study of the author on the historical change of judgments and conciliation statements implies that the judges trend to prefer to settle the disputes by way of the mediation and be cautious in the methods of judgment. To some degree, the judges are more willing to settle the disputes in the traditional way stressing on the substance.Based on the research of the family litigation files of Yongji County in the prior chapters, the author combs the change in following aspects:the concept of litigation, the moralization in the litigation, the devalue of procedures, etc. Through the study on the concept of litigation, the author learns that the participants of the family ligation still hold the conservative attitude prevalent during1949. With the reform of the litigation procedure, the usual persuasive wordings in "Ma Xi-wu-styled trial" in Mao's times, gradually withdrew from the stage of history. At present, in the we stern-styled adversarial system which emphasise the dominated role of the parties and neutrality of the judge, the mediation of judge in family litigation is in the trend of formalization, which it is the obvious evidence to the fade of moralization in the litigation involved in the traditional litigation culture. It is quite different that the superfluous debating process and the deprivation of debate right in case of absent trial are the direct result due to "Value Substance, Devalue Procedure" in the traditional litigation culture. Neither the judge nor the participants, cannot consciously be aware that the core of the adversarial system is the principle of debate; accordingly the important last statements often are a formalization. This phenomenon suggests that the adversarial system introduced after the judicial reform is in "the climate does not suit one" and reminds us that the difference between the family litigation and other civil litigation, additionally the traditional litigation culture deep influence on the behavior of the participants.In Chapter6, the author makes some comments on the reform of civil procedure since1990s and the advices from the circles, based on study in the above chapters. The author holds the argument that the reform of the civil procedure in the method "make it rigidly uniform" which is to ignore the difference between family litigation and other civil litigation, neither the evidence system nor the change of the judicial proceedings, cannot adapt to the request of the family litigation. At the same time, the introduction of the adversary system which emphasis the role of the parties, the western style litigation culture has not taken root in China by the end of the last century, and the traditional litigation culture cannot link logically to the western system. All of these result in the difficult situation of evidence, as well as judgment and divorce at high percent, in family litigation. Therefore, any legislation should pay attention to people's lawsuit culture, and strive to study the feasibility; only in this way can the legislation be effectively implemented as judicial practice.On the basis of the above analysis and the achievement of senior scholars, the author considers that, the namely-designed links exposed in the family litigation of the Yongji County implies the difficulties of the fusion of Chinese and Western system. The traditional opinion and regulation should be a critical reference, but the supremacy of law cannot be given up.