Civil Procedure Tectonic Study

Civil litigation conformation, which discusses the interrelations between the two litigious parties and between the court and the litigants, is a distribution of litigation power between the court and litigants during the litigation procedure. Take the distributions of power purview between the court and the litigant discussed by some theoretical research or/and present at the legislation practices of the countries into consideration, litigation conformation can be divided into three types. The first type is the conformation of adversary proceedings which emphasizes adequately on the will of the litigants and thinks much of the justice of the procedure. This type fully represents the design concept of the procedure which takes the litigant as the focus. The litigant is in a leading positon during the litigation while the judge in a comparatively passive position. The litigant has got the dominative right as regard to the procedure going, the selection of defendant, and the collecting and adducing of evidences and the judge just passively exercises his jurisdiction within the scope of the litigant's claim. The conformation of adversary proceedings gives prominence to "controlled" by the litigants, it may lead to such results as litigation delay and the damage of substantial justice. The second type is the conformation of inquisitional proceedings which focuses on the function of the judge. This type prefers the proceedings in which the jurisdiction is at a central position. The judge will not be restricted by the litigants' claim and could enjoy a dominative power during the process of litigation, collecting evidences and investigating, while the litigants' role in the procedure is comparatively weak or even intends to be objective. In the conformation of inquisitional proceedings, the power distributed to the court, which regards to the fact claim and evidence claim, cannot well reflect the parts shared between the court and the litigant or even get them confused. In this type, litigant is the one with responsibility for proving, however, his claim does not actually restrict the court,thus weakens his principle status,meanwhile the court is in a position to prove and to confirm, and this will not only lead to an oppugnation about its neutrality but overburden the court for the result of the adjudgement. The third type focuses on conciliation. Emphasizing too much on the statusof the litigant in civil litigation may result in litigation delay, thus add to the cost, and the conflict with litigation justice; although insisting to much on the judge's authority can solve these problems it will cause the problem of the judge's neutrality. Therefore, based on the conformation of adversary proceedings, the two law systems continuously adjust and conciliate the distribution of the litigation power between the court and the litigants. The conciliative litigation conformation emphasizes on both the protection of the litigants' principle rights and the judge's adequate control on the proceedings.The litigation conformation in Chinese civil litigation law could be recognized as the inquisitional type. According to the relative rules in Chinese civil litigation law, the court is distributed a dominative power: 1. The court is not fully restricted by the litigants with regard to fact claim. A judge has the right to confirm a fact even without the litigants' claim; 2. although law rules stipulate that it's the litigants' responsibility to adduce evidences the court still has the authority to collect evidences which it considers necessary; 3. the court has the dominative authority on the procedure going especially for the starts of some procedures. The above litigation power distributon strengthens the court's authority but weakens the litigant's principal status in the proceeding. The litigants' participation into litigation and the procedural protection for the litigants are obviously inefficient. Such a conformation relation between the court and the litigants can hardly define their roles in litigation and the confu...