| This is a thesis of the Ph.D. degree that researches the civil pretrial procedure ofsorting out the issue of civil case. The writer thinks that some scholars also point outthat we should pay attention to the pretrial procedure in the civil case, but do not carryon to study the procedure of sorting out issue in action in it thoroughly. Why is therethe procedure of sorting out the issues in the civil pretrial procedure? How to provideit? The answer of these important questions is the theoretical base of the procedure ofarranging issues of civil case. So, the writer puts forward one core and two basicpoints. The reason that the plaintiff brings a suit is the disputes between the parties,i.e., the issue in the specific civil case. Where there is a dispute between the parties,there is a trial. In that reason, the arranging of the issue is the core of civil trial. Forthe sake of the thorough analysis, the article chooses two clues in order to arrangingthe issues originally, namely two basic points: it is a basic litigation right for the partyto sort out issues for order. Though different nation and region, there are differences atrole and the function of the party concerned and judge to sorting issue in order, allrequest that the party concerned to have the predominant function in the litigation,that's to say, the party concerned should possess the right to arrange the issue so thatthey can understand the pure details and provide the data. This is the basic request ofthe argument doctrine and the punishment doctrine since modern age. On the otherhand, judge should own the moderate power to clarify problems in the pretrialprocedure.The article of Ph.D. degree's aim is to study the lawmaking and practice of thepretrial procedure of arranging the issue and put forward the system of establishingthe pretrial procedure of arranging the issue of our country, and put forward thelawmaking suggestion in order to provide it in the modification of the Civil ProcedureLaw of our country on the foundation of the arranging the issue involving in scholarsin the civil litigation field of discussing the pretrial procedure in the last few years.The article has six chapters and about one hundred and fifty thousand words except the preface. In the preface part, the article explains the background of the title,i.e., it is my original intention and background for me to try to choose it because oflimit theoretical research, odd system and ineffectual fulfillment of the procedure ofarranging the issue. The article puts forward the meaning of this title, i.e., it is a newsubject that is beneficial to further study the procedure of sorting out the issuetheoretically, to perfect the civil procedure act of our country and to normalize themethods of sorting out the issues in the practice. The article gives the overview ofpresent condition of this title at home and abroad. The article displays the paths, waysand contents of research of the title. The path of research is to choose the name of theprocedure of sorting out the issues in the pretrial procedure and to choose thelawmaking and practice in the procedure of sorting out the issues of the civil lawsystem, especially the procedure of sorting outing the issues of Germany and Japan,but pay more attention to the characteristics of the procedure of sorting out the issuesin the pretrial procedure of common law system. The methods of research are thehistorical analysis, comparative analysis, economic analysis and the positiveanalysis. The contents of research are to realize the function and value of the pretrialprocedure of sorting out the issues, design the pretrial procedure of sorting out theissues and the practical mechanism adapt to the cultural background of our country'sjudicature.Chapter 1 is the understanding of the concept of the civil pretrial procedure ofsorting out the issues. It mainly involves the concept and essence of the civil pretrialprocedure of sorting out the issues. Because of the difference of the point ofdiscussion, there are many different views. The writer thinks that all the particularthings that there are disputes between the parties all belong to the issues from beingadvantageous to of solving the disputes thoroughly. The article analyzes two kinds ofthe pretrial procedures of sorting out the issues from the view of judicial proceedings,common procedure, session procedure, i.e., the procedure of sorting out issues in thepretrial procedure and the procedure of sorting out in session procedure. And thearticle thinks the procedure of sorting out issues in the pretrial procedure is the perfectform and is the sub-procedure of the pretrial procedure and emphasizes that the claim in a lawsuit and the time limit of proof should move before the trial. Its aim is toprevent the party from putting forward the method of attack and defense at any timeand from procrastinatting the litigation and making courts empty. That's why the lawestablishes the pretrial procedure of sorting out the issues before session. Finally, thearticle puts forward the concept of the pretrial procedure of sorting out the issues. Thepretrial procedure of sorting out the issues is the procedure that the court and theparties concerned sort out the assertion, proof, law and other attack and defense in thepretrial procedure and they exist the relationship from each other.Chapter 2 is the function and values of the civil pretrial procedure of sorting outthe issue. The main content of this part concludes three parts: the first is the functionof the civil pretrial procedure of sorting out the issue. In addition to the function ofdetermining the subject of action and fixing the issue, the civil pretrial procedure ofsorting out the issue also has the function of lodging the methods of attack and thedefense in good time, helping to the concentration of trial, preventing from the raid ofissue and limiting the unscrupulousness of judge. The second is the value of the civilpretrial procedure of sorting out the issue. The article give the meticulous research tothe civil pretrial procedure of sorting out the issue and get a conclusion that the valueof the civil pretrial procedure of sorting out the issue concludes two aspects: one is thevalue of promoting the impartialness of trial, including the candor of procedure andentity, another is the value of promoting the efficiency of litigation. The third is thelimitations of the value of the civil pretrial procedure of sorting out the issue. Thewriter thinks although the civil pretrial procedure of sorting out the issue has "thevalue of double promoting", it is the most obvious and outstanding characteristic toraise litigation efficiency. And its limit is: the limit and interference of the right ofparty disposition, lack of flexibility, running counter to the regularity of proof and theessence of discover the true facts in action. Because the civil pretrial procedure ofsorting out the issue could belittle the realization of objective reality, law providesthat the civil pretrial procedure of sorting out the issue has exception under the specialcondition according to the pursuit of objective fact and substantial fairness.Chapter 3 is the comparison and evaluation on the regulation of the civil pretrial procedure of sorting out the issue between the civil law country and common lawcountry. Any country may not define the civil pretrial procedure of sorting out theissue and evidence except Japan, but all proceedings which bring explicit issue andfixed issue into play belong to the civil pretrial procedure of sorting out the issue. Thischapter analyzes the characteristics of the pretrial procedure of sorting out the issue ofthe representative civil law countries and representative common law countriesthrough the method of comparative analysis. The article thinks that the samecharacteristics of the civil pretrial procedure of sorting out the issue in the civil lawcountries are: the nature of subjective of the parties which participate in the civilpretrial procedure of sorting out the issue; the positivism of judge which participate inthe management of the civil pretrial procedure of sorting out the issue; sanction of theviolation of the civil pretrial procedure of sorting out the issue. And the samecharacteristics of the civil pretrial procedure of sorting out the issue in the countries ofcommon law are: it produces from meeting the jury on the historical view; it relies onthe discovery that is the most momentous proceedings in the pretrial procedure; thejudge reinforces the direction and supervision against the civil pretrial procedure ofsorting out the issue ceaselessly; the subjective position of all parties in the civilpretrial procedure of sorting out the issue are prominent; the setting of the civilpretrial procedure of sorting out the issue is rigorous, the manners of it are various,and the procedure is complicated, the technology is better.For the need and convenience of research, this paper concludes the differentcharacteristics and the same characteristics of the civil pretrial procedure of sortingout the issue between the countries of civil law and common law countries. Thedifferent characteristics between the civil law countries and common law countries are:The first is the clues of development are different. The civil law countries are fromhearing a case dispersedly to hearing a case uninterruptedly, but the common lawcountries are from the passivism of the judge to the activism. The second is thetendency of value is different. The civil law countries are mainly in pursuit of theefficiency of a lawsuit, but the common law countries are in pursuit of the fairnessexcept the efficiency. The same characteristics of the civil pretrial procedure of sorting out the issues in the countries of two systems of law mainly are: from thegrand view, the perfections of the civil pretrial procedure of sorting out the issue arethe common object of the countries of the two systems of law; form a small view, thecivil pretrial procedures of sorting out the issue are the common object of thecountries of the two systems of law are all that the claim delivered and the issuedecided by parties, parties are in the equal and antagonistic position network eachother, parties have either the right of collecting evidence or the specific measures tosafeguard that right. From practical result, the theory of advancing in time is theprinciple and the parties who violate the time limit of lodging timely are punishedmoderately. From the methods of sorting out the issue, they have both the oral formsand written forms, and the methods are varied. The revelation of the civil pretrialprocedures of sorting out the issue in the countries of two systems of law is in pursuitof the justice of procedure and is to carry out the adyersary doctrine and thecentralism of judgment. This paper also observes the domestic civil pretrial procedureof sorting out the issue, analyzes the present situation of lawmaking and the puzzledposition of practice of the civil pretrial procedure of sorting out the issue in China.Chapter 4 is the criticism on the reason of lacuna of the civil pretrial procedureof sorting out the issue in China. In order to establish the more reasonable the civilpretrial procedure of sorting out the issue, it is also necessary to analyze the reasonresulting in the result in addition to the understanding the present situation oflawmaking and the puzzled position of practice of it. First, the article put forward thatit is necessary to observe the brief history of civil procedure law of our country on thein order to understand the reason of lacuna of the civil pretrial procedure of sortingout the issue in China. Because of too many words, after the article analyzes the threestages, i.e., new-democratic revolution, from 1949 to the Civil Procedure Law in 1982,from the Civil Procedure Law in 1991 up to the present, the article thinks that thesystem of the civil procedure law of our social country reflects the characteristics ofpowers of court, that's to say, it emphasizes the power of court, but it belittles therights of party so that the civil pretrial procedure of sorting out the issue that the partyis the very important position in a lawsuit undoubtedly is hindered by the original system of civil procedure law. At the same time, it is discoverable from the historicalbackground of establishment of the Civil Procedure Law in 1991 that it could not laydown the civil pretrial procedure of sorting out the issue. Secondly, after the articleanalyzes the deviations or errors that the revolution of civil hearing emphasizes thecourt itself and belittles the party, it puts forward that the way such as the directhearing depreciates and even denies the necessary existence of the civil pretrialprocedure of sorting out the issue. So, the revolution of civil hearing not onlyrevolutionizes the forms of working in court, but also the lacuna of framework in thesystem of civil procedure law and emphasizes the position and rights of party in alawsuit in order to distribute the rights between the court and the party and reverts theright of determining the issue to the party. Thirdly, after the article discusses thelacuna of judicial interpretation, it thinks the lacuna the Evidence Rule provided bythe Supreme People's Court limits the civil pretrial procedure of sorting out the issuebecause the exchange of evidence only sorts out and fix the evidence and the issue ofevidence, does not include the whole issues such as the issues of object of action,facts, evidences, law and so on. This article also holds that the lacunae the judicialinterpretation is short of the systems of the missing rights and investigating evidenceof the party correspondingly hinder the establishment of the civil pretrial procedure ofsorting out the issue as a whole.Chapter 5 is the construction of the civil pretrial procedure of sorting out theissue in China. This part is the pivot of this paper. The article concludes that themethod of sorting out the issue using the exchange of evidence is too single to form aseries of rules to take the sorting out the issue as the dominant factor in the lawsuitthrough positive investigation, the article also puts forward that it is very important toprovide and consummate the civil pretrial procedure of sorting out the issue in China.The article holds that the quality and quantity of professional legal workers aresatisfies with the need of the civil pretrial procedure of sorting out the issue, but it isnecessary to continue the reinforcement of professional legal workers basically afteranalyzes the quality and quantity of professional legal workers. The article holds thatit is necessary to establish the guiding principle above all and holds that it is necessary to combine the party dominance with the court dominance, fairness with efficiency,internationalization with nativism.The basic framework of the civil pretrial procedure of sorting out the issuemakes up of subject, time, space and result. As to the problem of the subject of it, thispaper considers that the court and the party possess the vital and indispensablesignificance in the civil pretrial procedure of sorting out the issue, the parties' right oflitigation and the court's power of trial is interdependent and interactive. About theobject of it, it is necessary to confirm the object of litigation above all, and on thebasis of that, we can further affirm the issues of fact, evidence and law that arerelative to the object of litigation. As to the adaptive scope of the civil pretrialprocedure of sorting out the issue, this paper considers that, as the brief procedure isincomplete, it should be applied to the complicated cases that have many differencesof opinion and evidences in principle, but there are three points of exception: the firstone is the non-disputed case which the court consider it bear can hear at once after theparties' agreement, the second one is the cases which volume of object of an action isvery small or the court consider that it doesn't produce impact to the debate in trialand the termination of case in one time if the sorting out the issue in the pretrialprocedure is not carried out through the parties' agreement, the third one is the caseboth the parties apply to trial directly and agree that the result of producing the losingright without lodging the measure of attack and defend in pretrial procedure and thecourt consider that unoffending to the third party. About the measures of sorting outthe issue, this paper consider that, the law should design multifarious methods of thepretrial procedure of sorting out the issue for court and party in order to meet differentcases and protect the substantive profit and procedural profit of parties at most. Thispaper points out the measures are: the written measure of sorting out the issue, themeasure of debate in trial and the meeting measure of it. About the time and space ofthe civil pretrial procedure of sorting out the issue, this paper points that time is thedate and term which the subject of action safeguards the efficiency of action, and thespace is the territory and location which the subject of action safeguards the content ofaction. About the confirming of final time of sorting out the issue, this article holds thatthe critical point should be put before trial in principle, i.e., regarding the date of trialas the termination of the time of sorting out the issue. But the difference of theresponsibility of sorting out the issue between the party and judge determines thatdifference between party and judge about the time limit. The two kinds of hourswhich abided by court in the civil pretrial procedure of sorting out the issue are: thefirst is the exertion of right of command in aspect of the operation of the civil pretrialprocedure of sorting out the issue, for example the determination of length, the noticeof results of delay and so on, the second is the performance of the duties ofillumination that is the assistance of the parties to confirming the issue, for examplethe judge should tell the parties to supply and interpret something in complaint in time.As to the observance of time by parties, the diversity of the civil pretrial procedure ofsorting out the issue determines that the time observed by parties is diverse in the civilpretrial procedure of sorting out the issue. As to the location of the civil pretrialprocedure of sorting out the issue, the place and the scene should be in the amicablecircumstances so that the two parties will be in the moderate and conversational shapebecause the core of the civil pretrial procedure of sorting out the issue is affirming theissue between the parties before trial. The last is the terminating of the civil pretrialprocedure of sorting out the issue and its effectiveness, this paper consider that thejudgment by judge is the important symbol of terminating of the civil pretrialprocedure of sorting out the issue except the end by the pretrial judgment, theagreement of simplification of the issue and compromise. About the effectiveness ofsorting out the issue, this paper holds that the effectiveness of sorting out the issueincludes three aspects as follows: the first is the restraining of the party; the second isthe restraining of the judge; the third is the reversed restraint of the sorting out theissue.Chapter 6 is the safeguarding system of the civil pretrial procedure of sorting outthe issue. It is necessary for the relevant notion, principles and the environment ofregulation to safeguard the construction and implement of any systems effectively, sois the civil pretrial procedure of sorting out the issue. This chapter conceives and establishes the mechanism of the civil pretrial procedure of sorting out the issue in ourcountry. First we should change the laggard and negative traditional notion of action.Concretely speaking, the main content is: the judge should change the traditionalnotion of the emphasis of substantive law and belittlement of procedural law and takethe justice of procedure as the highest notion; the judge should change the notion ofselfish departmentalism of emphasis of nation's power and the judicial power higherthan the right of litigation; the judge should change the idea of official standard.Secondly, this paper suggests that the law should provide the principle of adversarysystem and concentrative trial because the establishment and the actualization of thepretrial procedure of sorting out the issue is tallied with adversary system andconcentrative trial, but conflict with the principle of ascertainment by authority andthe method of hearing non-successively. Finally, this paper considers that effectiveoperation of the pretrial procedure of sorting out the issue should be safeguard byrelative regulation. In China, the parties have the right of collection of evidence, butthere are not the relative regulations to safeguard the actualizing, so suggests that lawshould substantiate the regulation to safeguard the right of the collection of evidence.About the loss of right, this paper holds that we should adopt the way of civil lawcountries, i.e., take the object of the loss of right as the measure of attack and defense.At the same time, after the paper discusses the ability of illumination of judge, themeanings, the foundation and the history of discretional evaluation of evidence, thepaper concludes that the applicability of discretional evaluation of evidence in thepretrial procedure of sorting out the issue Finally, this paper puts forward thesuggestion about the enactment of the civil pretrial procedure of sorting out the issue.
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