Reflection And Reconstruction: On Ordinary Procedure Of First Instance Of Civil Procedure

In the new century, looking for a good way to promote justice and to overcome the miscarriages of justice has become a common topic in China’s legal community.The partial amendment of the"Civil Procedure Law of the People’s Republic of China" in 2007 was a meaningful attempt. However, the question and criticism of the "minor repairs and small change" makes the author realize that the comprehensive amendment of the "Civil Procedure Law of the People’s Republic of China" may reverse the current status of civil justice, or even be the best opportunity to change the whole situation of the miscarriages of justice. Under the guidance of the author’s professor (doctoral supervisor), the author chooses to research the ordinary procedure of first instance, which is the most important part of "Civil Procedure Law" and has still rarely been discussed. With the historical background of comprehensive amendment of "Civil Procedure Law of the People’s Republic of China", this essay is titled "Reflection and Reconstruction:research for Ordinary Procedure of First Instance of Civil Procedure" In this paper, the author tries to analyze the support system and necessary procedure of the ordinary procedure of first instance, and discuss the internal logic associated with these two aspects. On this basis, the author gives his own views and suggestions on improving the ordinary procedure of first instance in order to ensure justice. Since the basic position of the ordinary procedure of first instance, clarifying the ways of its reconstruction, will certainly affect the amendment and improvement of other trial procedures. Except for the introduction and conclusions, this essay is divided into five chapters.The first chapter is "Introduction:justice and its procedure premise". From characteristics and values of civil procedure, the author analyzes two core values of civil procedure, which are litigation fair value and litigation order value and their relationship. The author points out that the realization of civil justice needs rational procedures guaranteed. Combining the current plight of civil procedure, the author also discusses the necessity to reconstruct civil procedure, particularly to reconstruct the ordinary procedure of first instance in this chapter.The second chapter is "Improvement of principle and concept of the ordinary procedure of first instance ". In this chapter, which is based on the comprehensive amendment of "Civil Procedure Law of the People’s Republic of China", the author re-examines and reflects on the principle system and the specific content of civil procedure law, systematically organizes the principle of litigation rights protection, equal protection, free to deal with civil rights, procedural due process, independent judicial powers, public trial, verified evidence, arguing rights and the judicial sovereignty, in order to clarify the misunderstanding of the principles of civil procedure law. In this chapter, the author specifically discusses whether the right to exercise legal supervision of the people’s procuratorate, supporting the injured unit or individual to bring an action, conciliation and words like "based on facts and taking the law as the criterion" should be brought in the civil procedure legal system. Finally, the author presents the principle and concept of the ordinary procedure of first instance based on expert opinion.The third chapter is "System Innovation:the incremental supplement of the ordinary procedure of first instance". This chapter focuses on system innovation for improving the ordinary procedure of first instance. The author points out that the civil procedure law should be amended by adding following important litigations:the systems of objections to competency of parties, the systems of cross-claim, the systems of suspension of acts, the systems of order for investigation, the systems of witness’s liability, the systems of pretrial mediation, the systems of public interest litigation.In this chapter, the author discusses the meaning and the debates in the procedure law community of these systems, and studies the attempts carried out by legal community, in order to propose specific ideas on system construction.The fourth chapter is "System Improvement:partial improvement of the ordinary procedure of first instance " In this chapter, the author points out that several system arrangements which are closely related to the ordinary procedure of first instance have been unable to meet the needs of the judicial practice and the growing litigation needs of the parties, therefore, improving the litigation system is the focal point of this chapter. The amendment of "Civil Procedure Law" should focus on the following terms:judicial committee system (primarily the judicial committee "decided cases" system), collegial panel system (mainly the composition of the collegial panel members), withdrawal system, filing system, third party litigation, property preservation system, defense system, evidence exchange system, court debate system, court internal control system and the judicial quality control system.The fifth chapter is "logic and rationality:the rational reconstruction of the ordinary procedure of first instance ". First, the author researches the main part of the ordinary procedure of first instance and points out the existence of structural defects and technical issues, in terms of the unreasonable chapter arrangement, the insufficiency of civil procedure before trial, the lack of evidence exchange and debating arrangement, non-independence of post-trial mediation process, non-standard deliberation, the disorderliness of evidence presenting and cross-examining during court investigation, the lack of rigorous court debate, and the lack of protection of debating rights and final presenting rights. Second, the author analyses a serious conflict among "Some Provisions of the Supreme People’s Court on Evidence in Civil Procedures", "Some Provisions of the Supreme People’s Court on Economic Trial Reform in Civil Procedures", the articles of"Civil Procedure Law of the People’s Republic of China "and its legal interpretation. According to the logical progress, the author suggests that the ordinary procedure of first instance should be subdivided into seven aspects which consist of filing and registration process, pre-trial procedure, court proceedings, the parties’final statements, post-trial mediation process, deliberations and decisions, declaration and service procedures. The pretrial procedure should include appealing and defenses, pretrial conferences, the exchange of evidence, pretrial settlement and set up the available optional pretrial meditation process for the parties.The author is looking forward to a comprehensive amendment of Civil Procedure Law of the People’s Republic of China" and rational reconstruction of the ordinary procedure of first instance to maximize the promotion of civil procedure justice and benefit the parties and the lawyers.