Font Size: a A A

Civil Action Open To Legal Research

Posted on:2006-02-20Degree:DoctorType:Dissertation
Country:ChinaCandidate:X L WangFull Text:PDF
GTID:1116360155459113Subject:Civil Procedure Law
Abstract/Summary:PDF Full Text Request
The paper defines the scope of the object to be observed on the basis of the determining of the publicity of civil litigation, and, with the guide of the contemporary human-oriented value concept and with the application of the systematic perspective of the dialectical materialism, illustrates the existing picture of, the structure of, and the human nature of the publicity of civil litigation, elaborates the connotation of the value of the publicity of civil litigation and the means by which the value can be realized, and expounds the principle to govern the co-ordination between the concept of and the institution of the publicity of civil litigation, hence the mansion of the theory concerning the publicity of civil litigation coming into being. With the theory as standard, the exploration of and the improvement on the theory of and institution concerning the publicity of civil litigation has been developed.The paper consists of four parts, i.e. an introduction, a general study, an ontology and an application.The Introduction part firstly introduces the theoretical and practical significance in studying the publicity of civil litigation and also explains the framework under which the paper develops.The General principle part focuses on the rationality of modern human-oriented value, defines the object of the study on the publicity of civil litigation, puts forwards the guideline for and the methodology and the corresponding means to be applied to the study. Chapter 1 gives a definition of the publicity of civil litigation on the basis of the comparison of its terms between its Chinese version and its western counterparts as well as that of the related terms, so as to build up a discourse platform for the construction of rational theory of the publicity of civil litigation and offers a diagram for the reconstruction of Chinese theory and institution of the publicity of civil litigation. Due to the enduring influence of the irrationality, a proper term is still to be developed to cover the connotation andimplication of the publicity of civil litigation. The paper makes a preliminary endeavor to create a term to cover the human and scientific nature of the publicity of civil litigation, holding that the publicity of civil litigation refers to an act by the subjects to a proceeding to disclose the information relating to litigation as well as the process and/or state the continuant acts constitute or form. Chapter 2 deals with the guideline under which to constitute the theory of and the institution of the publicity of civil litigation. From the philosophical perspective, the invalidity of the disclosure in the civil communication between the subjects can be attributed to the over-emphasis on their respective subjectivity and the absence in the esteem for their counterparts' subjectivity. The existing theory of the publicity of civil litigation stresses the subjectivity of the participants relating to a proceeding, and helps build an institution failing to offer sufficient respect for the inter-subjectivity and also failing to obey the guideline-the contemporary human-oriented value rationality: each participant enjoys the status of subject to a proceeding. Chapter 3 discusses the methodology and the systematic methods via which the theory is composed, stressing the leading status of Marxist's historical and dialectical materialism and expounding the principles of the unity of positivism and humanism, that of holism and individualism, and related specific methods.The Ontology is composed of four chapters, i.e. chapters 4-7, with the application of the afore-constructed value rationality and methodology, makes a theoretical illustration of the existence as well as the structure, the base, the value and the safeguard to realize the construction and the operation of the institution of the publicity of the civil litigation. Chapter 4 discusses the existence of the publicity of the civil litigation, viewing that the publicity of the civil litigation displays the basic type and also the general features of civil litigation hence proposing that the publicity of the civil litigation stands for the mutual disclosure of the litigation information to their respective wills. The author also elaborates the structure of the publicity of the civil litigation form its static and dynamic perspective and makes diversified classifications of the publicity of the civil litigation indifferent views, arguing that the publicity of the civil litigation can refers to the publicity of the participants to a proceeding and that of the objects to a proceeding in the static view and it can also refers to the publicity of the litigation, which embodies the publicity of the pre-trial period and that of trial period, and that of the enforcement. Particularly the author, in terms of the mutual relationship between the wills of the participants to a proceeding, classifies the publicity of the litigation into the trier-oriented model, the litigants-oriented model and the co-ordinate model; in terms of the degree to which the objects to a proceeding is disclosed, the publicity of the litigation is divided into the types of complete publicity, half publicity and non-publicity. The former categorization reveals the nature of the publicity of civil litigation while the latter the quantity but the combination of the two categorizations portraits the panorama of the publicity of civil litigation. With the application of the principle of communication theory, the advantages of the dialogue model have been boosted and the dialogue model has been set up as the reconstruction diagram for China's theory concerning and the institution of the publicity of the civil litigation. Chapter 5 makes an analysis of the basis of the publicity of the civil litigation from the societal and individual perspectives. The societal perspective reveals the decisive influence of the human litigation culture upon the nature of the publicity of the civil litigation while the individual perspective displays the reason why the publicity of the civil litigation means the disclosure of litigation information by the participants to a proceeding resulting from the combination of the desire of the participants and the possibility the society gives. Chapter 6 makes a research of the value embodied in the publicity of the civil litigation and the general law governing the operation of the value regarding the publicity of the civil litigation, insisting that the preliminary structure formula of the value regarding the publicity of the civil litigation goes as below: one-dimensional expressiveness→mutual communication→ identical understanding, and the consequential structure formula follows as below: respective freedom →mutual equality → common identity. In the sense of act itself, the former formula tells the internal value of the publicityof the civil litigation whilst the latter the external value. However, in the sense of procedure, the former can tell the functional value of the publicity of the civil litigation while the latter the objective value. The most important point to be observed is that the fundamental value of the publicity of the civil litigation lies in its equal response to the desire of the participants to a proceeding for the publicity, otherwise the legitimacy of the publicity no exists. Chapter 7 expounds the mechanism which governs the self-safeguard system and the environmental safeguard system of the publicity of the civil litigation, holding that, to validate the operation of the system of the publicity of the civil litigation, the sub-systems and the environmental system and the system itself should be coordinated. The validity also entails the humanization and rationalization of the concept of the publicity of the civil litigation and the systematization of the norms of the publicity of the civil litigation.The Application part including chapters 8-9, deals with the application of the General principle and ontology to the reiteration and reconstruction of China's existing theory concerning and the institution of the publicity of the civil litigation. Chapter 8 categorizes the theories relating to the publicity of the civil litigation, points out their defects and finally proposes the path to the reconstruction of the theories at present. Chapter 9 makes a retrospect on the evolution of China's institution of the publicity of the civil litigation, points out its defects and the corresponding causes, and finally puts forwards the dialogue model as the diagram of the reconstruction.
Keywords/Search Tags:Research
PDF Full Text Request
Related items