A Research On Civil Case Filing System

Civil Case Filing set up in China in the 1990s,is a unique field in adjudication and is still at the stage of trial and development.In this newly developed litigation system with Chinese characteristics,several basic matters are yet to be clarified.This dissertation aims to make an exploration in this regard by dealing with such issues as its theoretical basis, its value as a system,filing requirements for various types of cases and its examination procedures.The dissertation is composed of seven parts:Chapter One,the Preface,proposes the concept of civil case filing system,surveys the course of change and development of civil case filing system in China,analyzes its function,and argues that the construction of a well-defined civil case filing system will help guarantee equal opportunities of parties,ensure a smooth conduction of the trial of cases,enhance the efficiency of proceedings,save judicial resources,and ultimately enable citizens' fair access to justice.Chapter one also points out the necessity and urgency of studies in this field,and hence setting the goals for the research.Chapter Two,the Theoretical Basis for the Civil Case Filing System, examines the system's theoretical basis through analyses of some other theories and systems of litigation such as the theory of the right of litigation, regulations on parties,the subject matter of action and res judicata,and the interest of action of the system,and discusses their relationship with the civil case filing system.Chapter Three,entitled "On Case Filing in Complaint Filing(General Principles)" comprises three sections.Section One introduces the relevant legal provisions on civil case filing in both the common law systems and the civil law systems,analyzes the legal requirements imposed by various countries on the party for filing a complaint,and examines the legal requirements for litigation and complaint filing in the theory of civil procedures in the civil law system.Section One concludes that the theories on litigation requirements and the theories on complaint-filing requirements provide a new angle for the completion and perfection of our current civil case filing system.Section Two studies the legal requirements provided in our Civil Procedural Law for filing a complaint and a case.It argues that while it is inevitable to impose legal requirements for filing a complaint,the conception of the legal requirements for case filing after a complaint filing cannot be solely based on the legislative precedents abroad, because in transplanting any legal system one has to take into consideration the actual conditions of one's own country.In fact,China's Civil Procedural Law sets so high a threshold for the party to file a complaint that it hinders,to a certain extent,the legitimate exercise of the right of action.Therefore,it is necessary to impose some regulations in this regard. Such provisions as the party "with direct interest in the case",the submission of sufficient evidence,which all hinder,to a considerable degree,the legal exercise of the right of action need to be imposed limitations on.In addition,this chapter also discusses the roles and functions of the provision on the litigation fees and those of the system of judicial assistance in civil case filing.Chapter Four,"On Case Filing in Complaint Filing(Other Provisions)",is composed of four sections.Section One summarizes the basic module and procedures in the practice of case filing and acceptance in China.Section Two,taking the nature of the legal relationship in civil and commercial activities as a yardstick,and using the method of categorization,divides civil cases into eight categories and explores some distinct issues involved in the examination and other relevant procedures when placing on file certain categories of cases.Section Three surveys the case filing issues of several special categories of cases,with a focus on the counterclaim and joint actions cases.Section Four discusses how to define and regulate the abuse of the right of action.It points out that the parties' exercise of their right of action must be restrained by law,and only when there is a balance between individualization and socialization of the right, can a harmonious society be established where personal interests and social interests are mutually related and coordinated.Chapter Five,"On Case Filing in the Appellate Procedures ",is made up of two sections.The first section analyzes the relationship between the systems of appeals and trial instances as well as the impact of such relationship on the legal requirements for case filing in the appellate procedures.It also makes suggestions as regards the legal requirements in China for case filing in the appellate.,procedures.Section One concludes that if the threshold for filing appeals is set too low or non-existent,the authority of the court of first instance will be undermined and constant postponement of cases is bound to ensue.Thus,it is necessary to draw on the relevant theories of interest in appeals of other countries,creating conditions for limitless appeal system in China.Section Two,starting with the submission and examination of the applications for appeal,clarifies the proceedings of case filing in the appellate procedures in the current system.Chapter Six,comprising two sections,is entitled "On Case Filing in the Retrial Procedures".Retrial procedures are also called adjudicatory supervision procedures in China.The first section discusses the three approaches to the commencement of the retrial procedures in China and analyzes the legal requirements for placing a case on file in the retrial procedures.It argues that the legal requirements for case filing in the retrial procedures should be strictly imposed,and that while guaranteeing the party's right to apply for case retrial,the authority of res judicata in effect and the legitimate right and interest of the counterparty should also be maintained.The first section also points out the contradictions between the commencement of the retrial procedures by the people's court or by the people's procuratorate within their power and the theory of civil procedures, indicating that where the party's right to apply for case retrial has been effectively guaranteed,the ex officio doctrine should only be used as a supplement to the commencement of the retrial procedures.The second section in this chapter explicates the relevant procedures for placing a case on file in the retrial procedures in compliance with the three ways to commence such procedures.The last chapter "Epilogue" reviews and summarizes the case filing issues involved in complaint filing,in the appellate procedures and in the retrial procedures,and ventures to propose suggestions as regards the completion and perfection of relevant legislation and judicature of China's civil case filing system.