World War Ii German Civil Procedure Law Reform

The German Code of Civil Procedure was issued on January 30, 1877 and came into force on October 1, 1879; so far, it has been existed for almost 120 years. During these years, this law has undergone more than one hundred times of amendment. Approximately, it maintains its original form ever since 1898. Its basic structure and the number of articles remain as well, yet the content of many articles has largely revised. As a result, the law's spirit and content has been quite different from those of its original one. Especially after World Warâ…¡, great changes have taken place in the German politics, economy and society. Following them, what has become of the German Code of Civil Procedure during these years? Has the law come through any reform? If any, then how and why did the reforms happen? What are the consequences? Such questions above must be made clear first for it is essential to obtain a correct understanding of the institution and norm of the German Code of Civil Procedure.As a matter of fact, the German Law plays quite an important role in the system of the Continent Law. Hence Chinese academia has attached great importance to its study. However, most of Chinese scholars have known little of German language, thus in the study, they can only refer to indirect material in association with the German Law. Consequently, their analysis of many relative issues has merely ended on an institutional level. It has never touched upon their causes beyond the institution, and never made a comprehensive and profound explanation of such issues. What is more, this kind of research would arouse serious misunderstanding. In conclusion, their study has failed to meet the requirements of the developing research of the Chinese Code of Civil Procedure both in depth and width. Although the Chinese version of the dictionary, teaching books, and thesis collections of the German Code of Civil Procedure were published in China, yet all these materials have still remained rather difficult for Chinese scholar and students to approach the concrete institution of the German Code of Civil Procedure for the articles of the law has not explicitly interpreted, besides, such teaching; books have not regarded Chinese as its readers. Considering the problems revealed in the study of Chinese scholars, the writer of this thesis will largely resort to the first-hand material, with an intention of presenting accurately some transitional reforms in the German Code of Civil Procedure and reflecting the status quo of their research as well.Besides introduction and conclusion, the thesis mainly contains another six chapters. First, the thesis makes a brief description of the series of reforms of the post-war German Code of Civil Procedure, then it gives an illumination on their characteristics and trend, and then it offers an in-depth analysis of the reason and background, followed by an overview of the effects, and finally the thesis makes a general appraisal about gain and loss of the reforms. As to observe others is to value oneself, therefore at the end of this essay, the writer hopes to find any suggestions in the German Code of Civil Procedure, that would benefit the revision of the Chinese Civil Procedure Law.The first chapter is a prescriptive one about the general situation of the reforms. It chronologically draws an outline of such reforms of the post-war German Code of Civil Procedure, with an emphasis on the two most important reforms (reforms both in 1976 and 2001) in order to find the subject of and lay a foundation for the subsequential analysis. During the first years after the Second World War, the German Code of Civil Procedure has comparatively remained with little change. By the end of 1960s, owing to the influence of social reforms, an illegitimate child can enjoy the same rights as a legitimate one, so begins the reform in the proceedings of establishing parentage. In this situation, the Law of Rechtspfleger was enacted. According to it, the judge has been freed from some tasks beyond his responsibility, so that he can spend enough time to perform his own duty. Since then, there have appeared a series of amendments with regard to lightening the judge's burden, which has became the pivot of the post-war German Civil Procedure Law. Furthermore, the proceedings about family affairs in the Civil Procedure law have frequently changed as well. At the turn of this century, the German Code of Civil Procedure has undergone some unprecedented transformations under the background of justice modernization, and a few years later, there have come out ten more books concerning the reforms of the German Civil Procedure Law.The second part tends to describe the characteristics and trend of such reforms. By referring to the history of the German Code of Civil Procedure in 1960s, the writer sums up four characteristics and trends manifested by these reforms, that is, the relief of court and acceleration of the procedure; the more and more clear function of instance; the development of cooperative thought and the much easier access to justice. Some scholars point out, ever since the German Code of Civil Procedure was issued, its history, to a large extent, has exhibited the history that some effective measures have been constantly taken to relieve the overloaded court, such as modulating the amount of jurisdiction, simplifying procedures, extending and transforming the structure, and introducing new systems and etc.. During the process of reforming, lawmakers have come to obtain a better understanding of the instance's function. Especially as a result of the reform in the year 2001, the adjustment of each instance's function has become far more reasonable. Another characteristic of these reforms is that the judge's duty of lightenment and discussion has been further strengthened, and the legal procedure becomes a mutual cooperative "field" both to the court and the party. Then the lawmakers continue to commit themselves to enriching the content of the party's rights of justice, establishing the legal aid system, improving the court administration, and timely adopting new information and technologies so as to make the court more accessible for the party.In the third chapter, this dissertation goes on with an elaboration of the reason and background of these reforms. From the perspective of German economy, politics, and culture, the writer makes efforts to approach the question why or in what situation such reforms took place. The transformations in German politics, economy and social culture make a full impact on the movement of the German Civil Procedure law. The flourishing post-war economic activities, for example, rapidly multiply the civil economic cases; however, the former procedure gradually becomes an obstacle in duly and satisfactorily solving the increasing procedural cases. Upon this, the Simplifications Amendment issued in 1976 begins to concentrate on such a problem as the procedure is delayed and the period of the procedure is too long. However, by the reason that there lacks enough money to support the 2001's reform for keeping on an increase of recruitment. Resultingly, the measures such as adjustment and optimization of the procedural structure have been made to eliminate any conflict in practice. In politics, European incorporation constantly requires that the domestic Civil Procedure law maintain a harmonious relationship with those in other member nations.The fourth part of this thesis focuses on the impacts the reforms have brought with. By studying the practice of the reforms both in 1976 and 2001, the writer strives to offer an overall view of the legal and social effects of the measures taken in each reform. In brief, the reform in 1976 makes great success in both procedures of simplification and concentration, yet the gradual multiplication of legal cases has counteracted the positive effects of the reforms for a long time. As for the reform in 2001, the writer will pay particular attention to its effect. There is no doubt that this reform is remarkably successful both in the first and second instances, yet concerning the third instance (the appeal), the effect seems not so satisfying. Presumably, this may result from the fact that the admissions criterion of the appeal is rather uncertain, which, to some extent, makes the appeal ambiguous.In the fifth chapter, the writer makes an overall appraisal of these reforms discussed above. First of all, the writer points out that the reforms in post-war German Code of Civil Procedure indeed, without any exception, belong to functional revisions within its institution, for they are based on the constitutional law from beginning to end. The protection of the party's basic rights such as the right of procedural guarantee has never been weakened although the faith of idealism has to make a compromise with all kinds of changing situations. The reforms of the German Civil Procedure Law have also problems, such as the necessary proof insufficiency, the reform goal are unclear as well as very little carries on reform success or failure question.The last part of the thesis is about a brief analysis of the suggestions these reforms might bring to the Chinese Civil Procedure Law. In this chapter, the writer argues that these reforms should acclimatize itself to the economic development. From this perspective, a better understanding of the reforms in the Chinese settlement, pretrial, witness term, rightless testimony, and the simplification system. From the angle that the purpose of the Civil Procedure should be pluralistic, the writer probes into the redesign of the party's legal protection and instance system with the aim of showing equal concern about realization of the other purposes of the Civil Procedure. The author also in the real diagnosis research experience and the lesson is inspired from the German civil procedure law reform, thought our country must vigorously strengthen this aspect the work. Finally, the author embarks from the domestic overseas reform overall tendency, theoretically macroscopic has discussed the idea - law peace and harmonious which our country civil procedure law reform must adopt.In sum, the German Code of Civil Procedure has undergone a variety of reforms in its over-one-hundred-year history, which include procedure concept, procedure system, and procedure structure. Under the background of economic globalization, the reforms in German justice provide us with a framework of a unique institution, and foremost, it offers a way of thinking about how to reform the legal system. The central themes such as "strive for compromise" and "access to justice" revealed in German legal reforms is worth of reference, as the Chinese tenet is, considering the limited judge power, to make sure the trial of the constantly increasing legal cases to be timely finished in a more effective and satisfying way, and simultaneously, to cost as low as possible.