Option Of Civil Procedure

The subject of my doctoral dissertation should be treated as long-cherished wish of me. The case study of my graduate student period shows that the aims of parties in civil procedure are very complex.By every personal litigation,wanting solve the disputation of the parties,bringing an accusation against somebody for the fights,via formalizing settlement making the following behaviors justice,maybe all the aims of every litigation of the parties.Traditionally,there are three sorts of the actions,the action of confirmation,the action of performance,the action of formation.But these are extremely not enough for the practical operation,especially when the aims of two parties are impure and comprehensive. Meanwhile,I found that the background of lawsuit between China and Hesperian is so different that it makes many factors of mental which can control the deeds of two parties profoundly are otherness two.The background factors mostly are the ideals of harmoniousness and intermediation preference.By the domination of these factors,the actual civil procedural system seems unsuitable to the parties' complicated needs.Therefore, although the judicial reform of Hesperian include the same content as China,just as erecting the multi-system of civil dispute resolution,endowing the parties with the right to select the property manners beyond the litigation to solve the dispute between them.But in my opinion,the discrepancy between China and other counties is so great,so that we should think carefully about our judicial reform,especially we should emphases on the judicial reform background,and the corresponding systems should suit to it.For above reasons,I hereby make the optional right about civil procedure as the topic of my doctoral dissertation.Excluding the prologue and the epilogue,there are six chapters in the dissertation.And it is about eighteen-hundred thousand Chinese characters.In the mass,I first analysis the judicial reform of some countries,and then give the basic conclusion,that is,the direction of China' judicial reform is to set up a dispute resolution truly for the people,based on the multi-demand,uppermost suit the parties' needs.In a word,the reform direction is to erect an judicial and dispute resolution truly form the people,by the people and for the people. Based above conclusion,my dissertation investigates follow questions. THE ELEMENTARY RELATIONSHIP BETWEEN THE PROCEDURE & THE OPTIONAL DEEDThe first chapter,I research the elementary relationship between the selective deed and the procedure.The first section of the chapter,I analyze the procedure through dynamic fashion,and give some elementary theories about my dissertation,especially the evolution rationalism of Hayek.At the end of the analysis,I point the three laws of the gradual progress of procedure,from the unknowable to knowable,from the obligation standard to right standard,form the parties' object-standard position to subject-standard position.And then,I give the important effect about the evolution of procedure to the parties' selective deeds.Just as what I write in the section,"From the point of the history,the procedure has and is developing gradually.And the progress mostly is a course of eliminating the obstacles to the parties' selective deeds.The result is the modern procedure has been developed the 'freedom system' and the 'sensible system' for the parties.And the above systems erect a room for the parties to select the relevant dement of the procedure with freedom.This not only makes the parties to be the true master of the procedure,but also makes the parties to be the subjects of more responsible."The second section,I investigate the interaction of the modern procedure and the selective deed of the parties.In my opinion,the modern procedure gives the parties a surrounding in which the parties can talk and bargain freely.The parties hereby are split up, and their alternant deeds are also kept in the criterion.So the parties' formerly perceptual, impetuous or even forcible deeds at last change into rational,orderly selective deeds.So the modern procedure is the safeguard in which the parties can use their optional right rationally to solve their dispute.To the extent,without the modern procedure,then the parties haven't the true optional rights,and the judicial result is inconsequence.But the above conclusion absolutely means not that the parties' optional deed has no effect on the procedure.In my opinion,the selective advantage of the optional right can naturally overcomes the rigidity of procedure.And further more,the groupment effect of the optional deed can continuously examine the result of the procedure.These effects of the parties' optional deeds not only can urge the procedure be made progress,but also can ensure the direction of the progress suit to the needs of the people maximatily.As stated above,there is natural interactive relation between the procedure and the optional deed.And the theory becomes the foremost base theory of my dissertation. THE ONTOLOGY OF THE OPTIONAL RIGHTThe second chapter of my dissertation tries to answer follow questions.The first is what is the optional right of the parties? Why we need the optional right in civil procedure? What is the elementary content about the theory?The first section of the chapter tries to explain the origin of the right.I think,as a system of private right,it came from the cogitation of the circle of practice and theory about the judicial crisis around the western countries.The judicial crisis makes the scholars thought carefully to solve corresponding problems.As a result of the investigation,the "access to justice" and the "replaceable dispute resolution mechanism" theories were given birth.All these theories and following measures make the parties having quite a few optional chances to determine their procedure themselves,and from another point of view, this made the parties get the subject-standard position in the dispute-resolve procedure.Just as I said in the section,the erecting of the parties' subject-standard position mean that the parties' optional right was erected too.So,the procedural option right theory maybe can be thought as the result of the judicial crisis around the world.The second section of the chapter is a detailed conclusion of the object,subject of the procedural option right.Not with the single descriptive method,I generalize the concept of procedural option right on the basis of analyzing three interrelated concepts.After the analysis of the subject of the right,I focal point the object and spread out several assembles of the object.After these,I point out the two principles of the procedural option right in a creative way,which is the principle of good faith and reasonable cost.At the end of the section,I point out the effects of the right.The first is do good to the construction of the social dispute resolution mechanism,and the second is the fundamental condition to the construction of the harmonious society.THE CORRELATINV INSTITUTION BUILDING OF THE PROCEDURAL OPTION RIGHTThe third and the forth chapters are the institution building of the procedural option right.The third chapter is used to analyze and demonstrate the China' current dispute resolution procedures.In this chapter,I point out we should erect the procedural option fight institution,in which the intermediation,the arbitration and the litigation are the three main bodies.The first section,I investigate the elements which affect the parties' selective deeds.In the conclusion,I point out three main factors which can profoundly affect the selective deed of Chinese.First of all is the lawsuit culture,which has been forming in the historical long fiver.And the second is the tapes of dispute.The last is the different social relation in given dispute.The second section is the analysis of the intermediation.After analyzing the hindrance factors which prevent the parties selecting the intermediation,I point out with emphases that establishing the fulltime,community-based organization,reforming and perfecting the technicality of intcrmediation and constructing the system of picking and training conciliator are the three important steps for the intermediation institution.After this,I also expound that in order to provoke the parties to select the intermediation to solve their disputes,we should strengthen the positive effect and the executive power of the reconciliation agreement.The third section is about the reform of the arbitration.According to my conclusion of the investigation,I think there are several reasons which block the people choose the arbitration to solve their disputes,when some sort of disputes rise.In the followings,I have written four blocking reasons.First,because the subject has no acquaintance with or only has misknowledge of the arbitration,so the appetency of the arbitration is disappearing gradually.Second,the judicial improper influence on the arbitration is one reason.Third is the shortcoming of the arbitration itself,which comes from the lacking of research.The fourth,though the quantity of the organization of arbitration in China is high,but the quality of the arbitration is low contrarily,so the subject of the dispute doesn't believe the arbitration and also doesn't believe the result of the arbitration.After these,I give three advises to change the corrupt practice in arbitration.In my opinion,in order to change the current problems we should integrate the organization,should turn the organizations and the arbitrators into professional ones,should prohibit the judicial put improper influence on the arbitration organizations or arbitrators.The fourth chapter is about the modification of the lawsuit system.Above all I point out that the difference of judicial between the intermediation or the arbitration is any party of the dispute subject has the legal right to bring a lawsuit against the other,whatever the other party agree or not.So we can make certain that about if to sue,the option right has little effect.But this absolutely doesn't mean that there is on option right or option deed of the parties in the civil procedure.In judicial procedure,the option right can be registered as following deed through which the parties can choose part of the judicial procedure system or principle.And the parties can achieve the aim of grasping the procedure and material profit.According to the first instance,I point out we should start the "greater pre-trial procedure and more careful trial procedure" reform work.The second instance,I think we should complete the negotiation system for the appellants.The aim of the reformatory steps should be made to let the appellants can negotiate each other and make agreement freely.THE MODE OF THE IMPLEMENTATIONThe fifth chapter is the analysis of the mode of the implementation of the option right. First of all,I demonstrate in detail on the characteristic of the option right and the difference between option right and right of disposing.And then I point out the mode of the implementation of the option right should be divided into two periods.One is before the litigation started in which the "litigation agreement" mode is the implementation mode of the fight,and the other is after the litigation started in which except for the former mode, the "requesting & ruling" mode is the implementation mode of the right.Through "litigation agreement" mode,the parties come to an agreement to choose the resolution way for their dispute.And after "twice agreement",the parties can solve their dispute thoroughly. Because of the particularity of the second mode,I set forth with emphasis the generated cause of the mode.Meanwhile,the rationality of the mode and the idiographic construction of the institution are also the focal points of the chapter.THE SECURITY FOR THE CIVIL PRECEDURAL OPTION RIGHTIn my opinion,the security of the civil procedural option right can be constructed in two ways.The first is that we should use the excitation mechanism to encourage the parties using their right reasonable and timely.Second is the reprimand system which can punish the party who do not use the right in accordance with the law.I think these two methods should be the important security for the civil procedural option fight.The details of the first and second sections are about the excitation mechanism.There are two important mechanisms should be improved.The first is the legal aid system,and the second is the publicity of discretion of the judge system.According the current situation of legal aid of China,I think we should strengthen two points of our system.The first is we should rule out the barrier of the construction of the legal aid organization.This should increase the amount of the legal aid organization,and this also means the people can get more legal aid when the dispute emerges.The second way is to change the main part of China's legal aid.Through the investigation,I found that the litigant legal aid is the main part of China,this is little suit to the need of the legal aid of the people.So I think we should enlarge the scope of the legal,especially the legal aid before litigation.These steps,I think,can help the parties choose the fight pattern rationally.The other system that we should complete is the publicity of discretion of the judge system.I think we should change the characteristic of the publicity of discretion of the judge system,from which the outcome goal to a phasic goal.We should plan that in several period the judge must open the discretion of the dispute,so that the parties can evaluate the dispute,and get the probability, and this can make the parties do the rational deed in the litigation.I think,all this can help the parties to choose the right procedureThe third section is about the reprimand system.I think we should not prompt the people to select the proper procedure,by punishing in material interest.Because of the delay or improperly using of the right is not the felicitous reason for use to take away from the material interest.I think we should construct the system of cost punishment to achieve the aim.In this section,I also inspect the institution of British litigation costs evaluation.I think we should adopt the institution to complete the corresponding system of China.At the end of the dissertation,as the epilogue,I point out that the civil procedural option right is a new system of right in civil procedure.All the measures what I said in the dissertation should be examined in the future.Including the system of the right itself and the institution of the implement of the right,there are many works we should do.