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Cooperative Action Of The Legal Analysis

Posted on:2006-04-13Degree:DoctorType:Dissertation
Country:ChinaCandidate:M ZhangFull Text:PDF
GTID:1116360155475074Subject:Legal theory
Abstract/Summary:PDF Full Text Request
The study of civil litigation pattern can enriching civil litigation theory, directing civil judicial practice and contributing to seeking the way of realizing the modernization of civil procedure legal system. Theoretical sphere in China limits its study to principle of litigant and principle of authority, but pays insufficient attention to cooperation pattern of litigation which is the trend of the pattern of civil litigation's development in the world. This thesis combs the present situation of civil litigation pattern's study in China, traces back to cooperation pattern of litigation's historical background in its development, emphatically analyses this pattern of litigation juristically, inquires into its theoretical basis, juristical content and the effect mechanism between the judge and litigants; besides, analyses cooperation pattern of litigation is our civil litigation pattern's new selection in the subject of legal system's modernization in particular and applies it into our pre-trail preparation procedure's reconstruction. In the end, analyses cooperation pattern of litigation's present situation in China, besides, how to readjust the environment which hindering this pattern's growth is also be discussed.The judge and litigants are effective, both litigant parties and the judge cooperate to advance litigation in cooperation pattern of litigation. Litigant's right of judge request's realization in procedural law needs equal protection between both litigant parties' litigation right. This and the conflict and coordination between litigation right and judicial authority should be this pattern of litigation's theoretical bases on which its construction relies. Principle of cooperation is constructed on the basis of criticizing and negating principle of debate, is the revision of principle of debate by elucidation right and the principle of honesty and credit. In this pattern of litigation, both litigant parties resist, besides, cooperation between them is emphasized. The litigants and the judge restrict with eachother, besides, their cooperating to advance litigation also is emphasized.Civil procedure legal system in China hasn't achieved modernization but still has certain distances is its present situation. One important reason is lacking modernized civil procedure, and yet it is our principle of authority's consquence. Considering reasons such as overcoming principle of authority's abuses, providing theory guidance to civil judicial reformation, it isnecessary to reconstruct our civil litigation pattern. Cooperation pattern of litigation is beneficial to realizing litigation justice and efficiency, meets market-oriented economy's requirement and civil litigation's inherent law, and has become the common trend of the pattern of civil litigation's development in the world. So it should be our civil litigation pattern's new selection. The extent of right(authority)'s redistribution between litigants and judge is beneficial to solving pre-trail preparation procedure's existing problems so that constructing a pre-trail preparation procedure which is independent and can elaborate its functions. Establishing this suitable litigation pattern is one selective way to realizing civil procedure legal system's modernization in China.
Keywords/Search Tags:pattern of civil litigation, principle of cooperation, modernization of civil procedure legal system, civil pre-trail preparation procedure, reconstruct
PDF Full Text Request
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