| Research to German concrete system of the civil procedures is conducted in this paper for the first time in China. The German civil right to be heard before the court involves the guarantee of human rights, it embodies the principle of the rule of law and is the core principle of the Civil Procedure Law and the civil proceedings. The right to be heard before the court is a procedural enjoy basic rights which the parties own in civil proceeding, and is also as the human rights protection of the Constitution embodied in the civil proceedings. The purpose is to protect the main status of the parties to the proceedings. In this article, the right to be heard launched a panoramic view and the structure of the study, covering the meanings, histories, theoretical basis, body, content, restrictions and relief of the right to be heard, to explore the Germany civil statutory as a fundamental right procedural rights and the protection of human rights concepts to the guidance supplied by the civil related litigation and the central role it plays. Based on our constitutional foundation for the protection of human rights, procedures for the protection of the right to legal theory and judicial proceedings of a harmonious law policy, in view of the Constitution and the shortcomings of the Civil Procedure Law legislative, the civil judicial practice as well as the civil litigation system needing to be perfect reality, it proposes to confirm the idea of statutory right to be heard before the court in the Constitution and the Code of Civil Procedure legislative, and to perfect the conception of statutory right to be heard in all specific system in civil proceeding, with a view to give the benefit to China's civil law's reformation and the perfect of the Code of Civil Procedure. In addition to this introduction, this article is divided into three parts, including 190,000 words.The first part is the "historical and theoretical basis of German right to be heard before the court." This part provides an analysis the meaning, the positioning system, features, as well as the difference with other countries provided on the term of the right to be heard before the court in German law, to seek the right to be heard before the court in the German history of the growth and development of the environment and its theoretical base.Chapterâ… first clears that "the right to be heard before the court " is translated from German. The author asked the faithful to the real meaning of the rights, that is to say, the parties who base on the main procedures status of the Constitution are entitled to request the court to make decisions to protect the parties to participate in the trial process, enjoy full right of attack and defense, state the truth and legal advice and the opportunity to debate, so that it can affect the conducting and results of the magistrate procedures. The right to be heard before the court is not only a constitutional right to the basic procedural rights but also a basic principle of civil, therefore, the right to be heard before the court can usually be interoperable with the statutory hearing. In the meantime, the historical evolution of the right to be heard before the court also indicates that this right is the outcome of the natural justice and constitutional development, with the course of the titration of Constitution.Chapterâ…¡expounds the right to be heard before the court is on the basis of the rule of law theory and the theoretical basis for the protection of human rights, illustrating that the right to be heard before the court is the product of the constitution. The constitution is the basis of protecting the parties' dominant position in the proceedings which is owned by the right to be heard before the court, and this right is the reflection of the concept of the protection of human rights, which is confirmed by the constitution in the civil proceedings.The second part is the systematic inspection to the right to be heard before the court.Chapterâ…¢sorts out the body of the German right to be heard before the court respectively in the Constitution and the Civil Procedure Law level. The scope of the people owning the right to be heard before the court in the Constitution is greater than the Code of Civil Procedure. In the Constitution, everyone is entitled to statutory right to request the hearing; in the Code of Civil Procedure, the body of the right to be heard before the court has the specificity, including the parties or the people with the status of the similar parties involved in court proceedings, or the people who has the stakes with the legal proceedings directly.Chapterâ…£deals with the content of the right to be heard before the court, including the right to know, right to be heard, the discretionary right to request trial and the raid of the right to request a magistrate prohibited. The right to be heard before the court not only gives the parties the litigation rights but also lessons the judges the trial discretion obligations and the tips obligation, prohibiting the attacks of referees and achieving the body protection of procedures of the parties. And this protection also relates to the civil litigation system, such as lawyers system.Chapterâ…¤addresses the right to be heard before the court is restricted legitimately by the proof-losing right system in the civil law. As the right to be heard before the court has the special status of the basic constitutional rights, it should not be restricted illegally. Only when the court applies the lost right provisions wrongly can it encroach on the right to be heard before the court.Chapterâ…¥researches the relief procedures of the right to be heard before the court. The relief has the specificity due to the dual attributes of the right to be heard before the court -- dual-relief. As a basic constitutional right, it may get the relief by constitutional litigation; as a procedural right, it may get the relief by the civil court. Its way of relief includes the constitutional complaint, appealing to the ordinary civil Court and Hearing inquiries. The reformation of German Civil Procedure Law in 2001 and 2004 adds up the Hearing inquiries relief process, to strengthen the relief of the right to be heard before the court.The third part shifts the perspective on the reflection of China's civil right to be heard before the court.Chapterâ…¦turns to analyze the legislative losses and causes of China's civil right to be heard before the court. China's ancient culture of the Confucian tradition, the patriarchal system of familism indelible the individuals, embodied in the legislation as the obligations for selfishness. In the proceedings the individuals are fettered by the legal obligations, have no procedures dominant position and can not play a positive impact on the formation of the magistrate. Thus, despite Ancient China implements the trial system of "hearing both sides of First Instance", it is different from the right to be heard system which promotes human dignity and protects the procedures dominant positions of the parties. China's current Constitution and Civil Procedure Law does not define any right to be heard clearly. This is due to the weak awareness of rights, the predominating the traditional concept of national legislation as well as not fully prepared to the statutory right to request legislation theory.Chapterâ…§demonstrates the necessity and feasibility to establish the right to be heard before the court in China. China's Constitution and Civil Procedure Law establishes that the right to be heard is the premise of the effective protection of that right. On the one hand, the right to be heard of the constitution is the need to perfect constitution, protect the human rights and protect the right to be heard as well as confirm the constitutional concept of the Code of Civil Procedure Law. Only the right to be heard is confirmed as a fundamental right of citizens can it design the constitutional concept of becoming China's civil litigation system, as well as be call the constitutional guarantees of the right to be heard; the Code of Civil Procedure of the right to be heard not only can make the constitutional concept of the Code of Civil Procedure specific, the principle of the right to be heard as the concept of the protection of human rights, but also protect the right to be heard system and its civil relief of the statutory procedures. Only after the Code of Civil Procedure provides the basic principles and methods of relief of the right to be heard in the civil law provides can it become the mainline of China's Civil Procedure Law system through civil proceedings and be effective legal protection; on the other hand, it is also the fundamental move to optimize proceedings, establish the authority of the judiciary and reduce the burden on the Supreme Court At present, the protection of human rights have been incorporated into the Constitution, "Justice Harmony" has been a goal pursued by litigation. In practice it has already begun practicing the system such as the protection of the right to be heard before the court of the parties. These suggest that establishing the right to be heard before the court already has preliminary conditions.Chapterâ…¨puts forward our legislative macro concept and thorough the system level of the construction of the right to be heard before the court of China, viewing the right to be heard before the court as the concept, from the three levels of the protection of the parties (â…¡andâ…¤), the binding of judges (â…£andâ…¥) and the relief procedures, requesting hearings on China's legal system relating to the right to review and make recommendations for improvement.This first provides one of the two macro-designs: in the aspect of the titration of the right to be heard before the court, the Constitution provides a right to be heard before the court expressly, and the Supreme People's Court set up special courts in the judicial practice against the right to be heard acts to be investigated;The second is the other one of the two macro-designs: in the aspect of the Code of Civil Procedure of the right to be heard before the court, as the principle of the right to be heard is a constitutional principle that protect the right to be heard before the court as the core, of which the effect is higher than the general principles of civil law, therefore, the Code of Civil Procedure should identify it clearly as one of the basic principles and provide its relief procedures.The third is the service system. There are many deficiencies existing in mode of service, especially the presumption service system is not perfect enough. In this regard, it should be improved by protecting effective service, improving the service system of the presumption and building the level service system, to ensure that the parties' awareness right of the procedures, for the exercise of the statutory right to request the hearing covered by other rights provide the basis.The forth is to review the obligations to address from the perspective of raid of a magistrate of the right to be heard before the court. The obligations to address has the problems such as the value of objective evaluation of low-level, address scope in the lack of levels and the unawareness of the tips obligation to legal point of view. It should regard the right to be heard before the court as the value objective of the obligations to address, perfecting the tips obligation to legal point of view, for example, the judges should perform the obligations to address and credit to the transcripts in the specific circumstances, to "prepare to review; the judges should not perform the obligations to address or not to make the magistrates, but can be appeal filed, inquiry or the constitution Kokoku to receive relief because of the judges against the right to be heard before the court.The fifth is that the proof-losing right system has the problems of single legitimacy theoretical foundation, the rules of proof-losing defects and the related system being not sound. It should regard the burden of litigation theory and the protection of the right to be heard before the court as well as its constitutional restrictions as the supplements of the legitimacy foundation of the evidence missing right system, to improve its specific systems and sound the loss right of reply with the evidence exchange matching system. Fine words, in the design of the system, China should limit the application of the proof-losing right system according to the minimum limit of the right to be heard. To this end, the evidence system reformation should be carried out as follows: first, it should relax the burden of proof for condition, regard the parties to provide evidence before the expiration of the period as the general principle, at the same time, in the first instance before the end of the debate on language, according to the real needs of identified cases, the parties have the right to provide evidence in time; second, to regular the essential elements of the evidence missing right strictly, namely, the judges implement the pre-trial preparation, to provide the sufficient opportunity and time for the parties to submit evidence; to allow the parties give the proof overdue will lead the litigation to delay; the parties giving the proof overdue have significant fault or malicious. When the parties give the proof overdue, the court should give the parties on the no-fault overdue for dredging that opportunity. Only the judges think that there are major fault of the parties giving the proof overdue and giving the proof overdue will lead the litigation to delay can it apply the evidence missing right; again, it should redefine the meaning of the new evidence. In the first trial the new evidence should include: the evidence that isn't proposed, is abandoned and excluded by the court correctly at the last words debate in the end of the first instance; the facts happen after the last words debate in the end of the first trial; in the first trial that the parties have no substantive disputes, but in second instance, to provide the evidence to the dispute on the substantive corrections. The second trial allowing the new evidence including: the views that the court of First Instance obviously overlooked or the view that is not important; the evidence that did not advocate because of procedural shortcomings in the first trial; the evidence that wasn't put forward in the first trial not because of the parties' fault. Last, to establish the defendant lost right system and to perfect the system of pre-trial evidence-exchange system related supporting systems.The sixth is that the open heart permission is the requirements to perform the trial discretion obligations to the judges. Especially magistrate reason for the public is the important symbol .whether the right to be heard is protected or not. The legislation of the open heart permission system is slipshod and has a greater randomness in practice. Its theoretical perspective is narrow. Its Perspective should be converted, in order to protect the concept of the right to be heard before the court to perfect the specific systems.The seventh is review of the protection of the right to be heard before the court concerning the application system of the party to a lawsuit in the 2007 revised Civil Procedure Law of China. The regulation still has the suspicion of procedure tool theory, and should guarantee the parties' right to be heard before the court as the design principle for application system of retrial, adding the "judge's violation of this interpretation obligation" and" improper restriction of the parties' right to put forward new attacking and defending methods to the retrial reason, reducing the period of an application for retrial, approving the application once for retrial only when the case in appeal instance.
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