A Jurisprudential Analysis On Right Of Action

Right of action, by which citizens ask for judicial remedy from judicial organizations, is a kind of basic right of citizen by our Constitution. The values of right of action are to remedy rights, resolve disputes, restrict state power, and express citizen's individual will and appeals. Action plays a more important role in the resolution of disputes and conflicts in China's transitional period when many disputes and conflicts are coming forth. So focusing on the development of rights of action in China and the theoretical research of rights of action has very important academic and practical values. Considering some dissatisfied questions in possession and protection of citizen's rights of action, and the theoretical research of right of action in China, this thesis firstly discusses the history of right of action in Western nations, then analyzes theoretical foundation, conceptual foundation, institutional foundation, nature and values relating to right of action. On the basis of the discussion, the author deeply rethinks some problems and discloses the complexity about the development of right of action in the current China. The complexity is that China's development of right of action synchronically faces the problems which the Western nations have had faced diachronically. Finally the author puts forward some possible suggestions about China's development of right of action. The suggestions are to deal with at least three relations: relations between rights of action and judicial power, between procedural justice and substantive justice, between protection of right of action and alternative dispute resolution mechanism, in the course of strengthening the idea of basic rights of right of action and perfecting institutional protection of right of action to fully realize the values of right of action and highlight citizen's subjectivity in the rule of law in China.This thesis has four chapters according to the logic of discussion.Chapter one analyzes the general situation related to research of right of action in China. In the author's eyes, the research focuses on either the concept of the right of action or institutional perfection and protection of right of action. Though scholars have been more deeply researching rights of action, the author thinks that the previous research ignores the history, the theoretical foundation, the nature and values of right of action, and cannot discuss the complexity about the development of right of action in the socially transformational period of China. Therefore, this thesis thinks it necessary to deeply discuss right of action in theoretical dimension and uncover the complexity of the development of right of action in the social transformation of China.Chapter two discusses history of development of right of action in Western nations. The concept of rights of action derives from Roman law. Then right of action develops in two different approaches(civil law system and Anglo-American law). By 20th century especially after World War Two the two different approaches of development of right of action gradually begin to intercross and syncretize each other. Through the discussion the author tries to clarify the development of right of action in the dimension of a complex process from practice to theory, and from the ordinary right in ordinary law to the fundamental right in Constitutions. The style, subject, nature and institutional safeguard of right of action have had developed and changed in this process. From the perspective of the types of the right of action, administrative and constitutional right of action gradually present themselves on the basis of the original civil as well as criminal right of action; from that of the subjects of right of action, it is argued that they now possess the feature of equality, openness and universality instead of being hierarchical, identity-oriented and narrow; from that of the nature of right of action, it can be safely said that it has been developed from a right in ordinary law into a basic right in terms of constitution and international law; and from that of the safeguard of right of action, it is now acknowledged that this right is not only safeguarded by civil and criminal appeal mechanisms but also by administrative and constitutional appeal mechanisms.Chapter three is to carry out some theoretical research on right of action. The author argues that natural law theory is an important theoretical foundation of the development of right of action. Individualism, natural rights, separation of powers and social contract that are held by natural law theory facilitate the birth and development of right of action of modern times, and cause right of action to develop from ordinary right to human rights in constitution and international law. Idea of rights has experienced great changes under the influence of natural law theory. According to this natural law theory rights are regarded as not only natural rights and rights affirmed in positive law but also rights guaranteed by judicial power. The process of judicialization of rights is also the course of development of right of action because right of action is the agency from natural rights to positive rights. The birth of right of action in modern times depends on independent judicial power in institutional aspect. The realization of right of action of the parties relies on the exercise of judicial power. With the right of action of the relevant parties as a basis,the relation between right of action and judicial power has transformed from duties-orientation to rights-orientation. It is reasonable to discuss nature and values of right of action on the basis of this analysis. Judicial remedy, as the most important public power remedy, comes to be obligations and duties of judicial organization to subject of rights in the course of switching from self-help to public power remedy. Accordingly the subjects of rights have the right to ask judicial organizations to protect and remedy their injured rights. This right is right of action. The unique nature of right of action is embodied in the course of transforming self-help to public power remedy. The author puts forward three dimensions of right of action, natural, legal and practical, to more deeply understand its nature and values. The values of right of action are to safeguard and remedy rights, resolve disputes, restrict state power, express citizen's individual will and appeals, and stress subject of rule of law of citizens. In a word, right of action has values of constitutionalism, democracy and human rights.Chapter four is to discuss the development and difficulties of right of action, and its possible choice in China in accordance with historical and theoretical research on right of action in Western nations in chapter two and chapter three. Why does the author regard the historical and theoretical research as the frame of reference, which can be used to discuss China's problem about right of action? The reason is that the author thinks the values of right of action in the rule of law and human rights are in a sense universal. Although there have been great development of right of action in China, the author thinks the system and institutional protection of right of action remain imperfect. The problems are involved in issues like judicial independence and corruption, individual consciousness of rights, and the lack of idea of law process. At the same time China's development of right of action synchronically faces the problems which the Western nations have had faced diachronically as a result of the social transformation of China. On the one hand we need perfect institutional protection of right of action, and strengthen judicial independence, citizen's consciousness of rights, and idea of law process. On the other hand China has to seriously face issues like the defects of litigation, pressure of mass cases litigated, and transformation of judicial function, to achieve the double tasks of judicial justice and judicial efficiency. Therefore, we have to recognize the complexity and particularity of development of right of action in China, which are different from those of the Western countries. In view of this consideration, the author puts forward some suggestions for promoting the development of right of action in China. It is important to strengthen the idea of basic rights of right of action, which has had some jurisprudential and social foundation in nowadays China, and to perfect institutional protection of right of action. In the course of doing these things, it is essential to deal with at least three relations: relations between right of action and judicial power, between procedural justice and substantive justice, between protection of right of action and alternative dispute resolution mechanism.