Study On Pretrial Civil Procedures

In the trend of worldwide pretrial procedure reformation, the reestablishment of Chinese pretrial procedure is also put on the agenda. The judicial and academic circles are exploring actively now. Fair and efficient dispute resolution through full and appropriate preparation and correspondingly substantial and concentrated trial is the objective of pretrial procedure reformation. Under its direction, tied closely with Chinese pretrial reformation practice, adopting comparative research method mainly, this Ph. D. Dissertation presents a systematic scheme for the reestablishment of Chinese pretrial procedure. It has five chapters besides an introduction and is about 160, 000 words.The introduction of the dissertation points out three essential problems in the present Chinese pretrial reformation after a sketchy description of the reformation course. The first one is that of the roles of judges and parties in the pretrial procedure. The present prospects is that on the one hand the parties have no dominant power in the decision of issues and evidences, on the other hand the judges' responsibility to help the parties present facts and evidences is abandoned because of blind weakening of the judges' power. The second problem is concering the parties' right to prove. The invalidity system is over emaphasized while the parties' right to collect evidences and the application requirements of the invalidation system are neglected. The third problem is on the contents, methods and procedure of ascertaining issues and evidences. That is what contents full, proper and effective ascertainment of issues and evidences should include and whether the pretrial meetings applied only to difficult cases is appropriate.Chapter one makes a study on the definition, values and evolutions of pretrial procedures to get a brief comprehension of pretrial procedures, their positions in civil procedures and their developing trend. The author holds that so-called pretrial procedures are the generalization of the relationships between judges and parties that are built in preparation activities which are carried out according to definite orders, patterns and formalities. Judicial justice consists of procedural justice and substantial justice. The standards of just procedure include the openness of litigation, neutrality of judges, equality of parties, participation of parties, stablity ofprocedures. The achievement of substantial justice depends on the finding of truth and the accurate application of laws. The judicial efficency reflects the ratio of judicial costs and gains. As a component of the civil procedure, the pretrial procedure leads to the achievement of justice and efficency of the trial, and it also should reflect the requirements of judicial justice and efficency. Finally, the author makes a detailed research on the evolution of the pretrial procedures in foreign countries. Because of the difference in whether there are jurors, the backgrounds of pretrial procedures' establishment in two main legal families and the problems in their developments are totally different. But perfection of the pretrial procedures is their common task.Chapter two is on roles of judges and parties in pretrial procedures. After the description of the changes of roles of judges and parties in civil procedures, the author concludes that cooperation between judges and parties is emphasized today in the world. Under this background, the author delineates the roles of judges and parties in the determination of issues and evidences, and the operation of pretrial procedures. That is, in the determination of issues and evidences, according to the principles of deposition and debate, parties have the dominant power but the judges should also give proper clarification. While in the operation of pretrial procedures, judges have the dominant power but parties' participation right should also be recognized. Judges' clarification in pretrial procedures is not only to make up the differences of resources between the two parties and find the truth, but also...