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Perfection Of Civil Procedure Involving Foreign Factors Under Doctrine Of Adversary Hearing In China

Posted on:2013-07-13Degree:DoctorType:Dissertation
Country:ChinaCandidate:Y M MaFull Text:PDF
GTID:1226330392464667Subject:International law
Abstract/Summary:PDF Full Text Request
Doctrine of adversary hearing,defining the role and division between the courtand the parties, is a core terminology and fundamental doctrine in civil procedure incontinental law system. With the emerging concept of social civil action andmanagement-strengthening of civil litigation by the country, classical doctrine ofadversary hearing has evolved into modified doctrine of adversary hearing alongwith case-managing power or litigation-directing power. Under the academicresearch in continental law system, narrowly-defined doctrine of adversary hearing iscomposed of three doctrines: court adjudicates within the limit of the facts andclaims and evidence materials which the parties present; court is constrained by thefacts that the parties have no arguments (admission of the parties) and can not tomake fact-finding differentiating from the admission; the parties exertevidence-collecting right to prove their respective claims and the range ofevidence-collecting of the court is considerable limited. Beyond narrowly-defineddoctrine of adversary hearing, broadly-defined doctrine of adversary hearing alsocontains doctrine of disposition, which means only the parties have the right todecide how to settle the disputes between the parties and when the procedurecommences and finishes, to decide the object of adjudicating. Civil procedure underthe operation of narrowly-defined doctrine of adversary hearing and doctrine ofdisposition respects the procedural subject status of the parties on the private lawautonomy basis and highlight the procedural participation right of the parties, thechoice of procedure right of the parties and disposition right on substantive affairs.Under the doctrine of adversary hearing, the parties present the facts, claimsand evidence materials to prove their respective claims and burden the adjudicationagainst themselves in the event of failing to fully prove their respective claims,which elicits the asserting liability that based on the fact asserted by the parties anddistinguishes primary facts from collateral facts according to the relation with thedispute between the parties and establishes the theory of ultimate facts. Ultimatefacts connect the attacking-and-defending behavior of the parties and fact-findingbehavior of the court. Object of action is the legal nexus and the claim what the parties in the civil procedure involving foreign factors claim the court to settle or toprovide remedy. The object of action, which is specified in the complaint and then isadjudicated after evidence-presenting and cross-examination as well as arguing,controls the range of the party’s rights and the court ‘s power in the proceeding.Under the doctrine of the adversary hearing, the fact of admission binds the court toadjudicate and stop the court from investigating and collecting the evidence.Doctrine of adversary hearing is not followed to find the fact in civil procedureinvolving foreign factors in China, adjudication beyond the fact-asserting is not onlyapproved by the court but also recognized by the parties, facts argued and judgmentis simply enumerated in the adjudicative document, while the logic elucidationbetween the fact-finding and the judgment is usually simply, facts of confession isoften investigated by the court for the purpose of truth-pursuing. Asserting liabilityshall be established in civil procedure involving foreign factors in China. The theoryof ultimate facts and fair doctrine for distributing the proving liability shall beapplied to find the facts and to adjudicate in order to achieve the balance of legalstability and legal flexibility. Older substantive law theory about object of actiontheory is baffled with concurrence of claim in practice and effects the realm ofadjudication in civil procedure involving foreign factors in China. Object of action ismerely academic appellation, however, in consideration of its dynamic natureembedded in the procedure, its distinction and determination shall be made in thedynamic procedure. Dynamic Object of action, which means that the object of actionshall be specified when the plaintiff files the suit and then shall be determined by theparties after evidence-presenting, cross-examination, verbal arguing and clarificationof the judge as well.Broadly-defined doctrine of adversary hearing means the dominant power ofthe parties in the sense of the substantive matters and the commencement andtermination of procedure. The parties are entitled to choose procedure and place tosettle the disputes between them, the parties are entitled to choose the differentforum to file the suit on the same dispute and then initiates parallel litigation, whichis regulated by the national legislation and international convention to make itsreduction and avoidance owing to its disadvantage to the substantive rights of the parties. Civil disputes involving foreign factors is entertained and heard in the courtin China in the event that the court in China has the jurisdiction on the said disputes,no matter whether or not foreign courts have heard or have adjudicated. There is noroom for recognition prognosis theory and forum non-convenience doctrine, whichare the common rules to settle the parallel litigation in the world, to apply in thelegislation and judicial practice in civil procedure involving foreign factors in China.The attitude towards parallel litigation in China not only hinders the progress tosettle the conflict of parallel litigation but also triggers more waste of judicialresources and non-recognition and non-enforcement of judgment made in China.Forum non-convenience doctrine and other theories to settle parallel litigation shallbe used for reference and jurisdiction in China shall be absented to settle parallellitigation and to extremely realize the parties’ substantive rights and interests in Civilprocedure involving foreign factors in China.On the premise of no violation of exclusive jurisdiction for the protection ofsovereignty and social interest, the parties in civil procedure involving foreignfactors is entitled to choice of procedure right and disposition right and is entitled tochoice of court agreement to settle the disputes between them. Choice of courtagreement respects the disposition freedom of the parties and contributes tojurisdiction-determining and settlement of parallel litigation and for this reason it hasbecame the effective method recognized in the world to settle the conflictinginternational jurisdiction. However, jurisdiction-allocating is transferred from thecountries to the parties by choice of court agreement; there are some limitation forchoice of court agreement on the basis of upholding the freedom of the parties andrecognition of the parties’ choice of procedure right and of the parties’ proceduralsubject status. Choice of court agreement shall be interpreted loosely to make theagreement establishing to the considerable extent to realize the balance of meeting ofthe minds and not excessively intervening the development of international business.Practical connection between the chosen forum and the disputes shall be abolishedand the applying field of choice of court agreement shall be explicated in civilprocedure involving foreign factors in China, whether or not the chosen court hasexclusive jurisdiction shall be expressly stipulated in the legislation to avoid the conflict of jurisdiction and sovereignty dispute when the nature of the chosen courtis not clear in the agreement. As regards implied choice of court agreement,appearance of the defendant aiming only to challenge the jurisdiction and only todefend against claims having nothing to do with the dispute shall not be viewed asconsenting to the jurisdiction in civil procedure involving foreign factors in China.The parties shall collect the evidence and materials to prove their respectiveclaims and the court seldom collects evidence in principle under the doctrine ofadversary hearing, which embodies the dominant power of the parties in thesubstantive sense. Evidence-collecting and evidence-presenting not only affectwhether or not the claims will be supported but also determine the extent offact-finding by the judge. Limited by litigation ability of the parties, theinsufficiency and indeterminacy and imperfection of the facts and evidence materialswill undoubtedly influence the validity of the attacking-and-defending behavior ofthe parties and earlier issue-fixing. The judge is demanded to clarify to assist theparties enrich and perfect the facts and materials in the stage of claim-asserting andin the stage of evidence-presenting, and the judge is demanded to clarify the cause oflaw-applying to adjudicate to realize thorough information changing andcommunication between the parties and the court and to safeguard equal dialoguebetween the parties and the court on the premise of weapon equality principle as well.Timely clarification is to amend the consequence of failing to genuinely fulfill theweapon equality doctrine thanks to ignorance of substantive inequality between theparties under the classical doctrine of adversary hearing. Clarification bases on theprocedural subject status of the parties and is contained by the doctrine of adversaryhearing and provides the necessary assistance for the parties to accomplish theirrespective procedural behaviors to achieve fair adjudication. The parties can pursueto remedies if the judge clarifies improperly. The parties shall be provided with fullynecessary system guarantees in the legislation to thoroughly settle the disputes andreinforce the fact-finding to deter the parties’ failure of proof-burdening and losingthe suit from the parties’ incapability of thorough evidence-collecting. Informationand evidence materials of public authorities and commercial originations shall bepublicized on the premise of not influencing the secrets of countries and commercial originations. Obligation of truthfulness and obligation to promptly proceed the civilprocedure shall be stipulated to urge the parties intensively present evidencematerials in time, and loss of right sanction shall also be provided for the parties’failure to fulfill the said obligations. The range of evidence-collecting by court shallbe explicated; especially the court shall collect the evidence responding to therequest by the parties where the evidence that can not be collected by the partiesdeterminatively effects the adjudication. Electronic evidence and clarification shallbe reinforced and regulated, including the legitimate consequences of improperclarification and remedies for the parties deriving from improper clarification andchallenge right of the parties in court to rectify the disadvantageous consequencesfor the parties because of improper clarification.The parties are the subjects to collect the evidence under the doctrine ofadversary hearing, the parties, In reality, have been viewed as the subjects to collectthe evidence in Some Provisions of the Supreme People’s Court on Evidence in CivilProcedures promulgated in2002. However, nature of judicial sovereignty of takingof evidence abroad in the civil procedure in China expels taking of evidence abroadby special commissioner in the civil procedure involving foreign factors in China,which contradicted with the stipulation of viewing the parties as subjects to collectthe evidence in the said provision. Taking of evidence abroad by specialcommissioner with reciprocal premise and limitation shall be stipulated in civilprocedure involving foreign factors in China to enhance the efficiency of taking ofevidence abroad. Fact-presenting dominant right of the parties under the doctrine ofadversary hearing embodies the procedural subject status of the parties according tothe relationship between the parties and the court, while it is the proceduralparticipation right in the sense of the right-exercising of the parties andpower-executing of the court. Service of process is the method for the parties toaccess to the information and procedural material to comprehend the litigation.Service of process in accordance with the law, coinciding with procedural subjectstatus and procedural participation right and the right being heard, affects thoroughparticipation of the parties and adjudication of the court and for this reasondetermines whether or not the procedure is fair and the judgment will be recognized and enforced to considerable extent. There are various methods of service of processin the world to realize said functions of service of process. Judicial sovereigntynature of service of process has been persisted on in the long run in China and thusmethods of service of process are limited so as to seriously affect the hearingproceeding in civil procedure involving foreign factors. Judicial sovereignty natureof service of process, which perplexes service of process in civil procedure involvingforeign factors in China, shall not be persevered in civil procedure involving foreignfactors in China to realize substantive rights of the parties and to upgrade theefficiency of procedure. Subjects shall be broadened to include country and parties,limitation of service by post shall be removed and electric service shall be reinforcedto realize the procedural participation right of the parties and to safeguard thesubstantive rights and procedural rights of the parties.Doctrine of adversary hearing dominates civil procedure involving foreignfactors from the beginning to end in the substantive and procedural aspects. With theproceeding of fact-asserting and arguing and fact-finding and law-applying andadjudication as well, doctrine of adversary hearing works and then have no functionwhen the said procedures finish, yet the right of the parties in the judgment is onlythe right on paper, recognition and enforcement system shall operate to change theright on paper into the material right. Whether or not the judgment will berecognized and enforced is associated with various elements. Recognition andenforcement of judgment is the final stage to determine whether or not variousbehaviors of the parties and of the court in the earlier procedural stages will havelegal effects in reality and the extent of function-realizing and of the indication ofcomparative advantages in civil procedure involving foreign factors. All in all, saidinfluences and function-realizing are determined by the procedural guaranteesembedded in the judgment, while the procedural guarantees reflect proceduralsubject status of the parties and proposition right of the procedural subjects underdoctrine of adversary hearing. The requirements of recognition and enforcement ofjudgment including Whether or not the country rendering the judgment haslegitimate jurisdiction and the procedure is fair are associated with choice ofprocedure right and participation right of the parties that are the basis of the doctrine of adversary hearing. While the requirement of recognition and enforcement ofjudgment including Whether or not the judgment is final is connected with thedetermination of object of action that is object of the attacking-and-defendingbehaviors of the parties and adjudication behavior of the court. Final judgment hasres judicata as soon as it enters into force, so it can not be rescinded or denied owingto the error either in fact-finding or in law-applying. Chinese judgment is seldomrecognized and enforced abroad because of being questioned res judicata of thejudgment resulting from broad requirements of retrial system, so the parties shall bethe dominant subjects to commence retrial procedure in China and public authoritiesto commence retrial procedure shall be reduced.Doctrine of adversary hearing, which needs various procedural systems tosafeguard its well-run and yet the operation of doctrine of adversary hearingconversely advances the coordination and consilience of the procedural systems,operates in the all procedure in civil procedure involving foreign factors in China.Doctrine of adversary hearing makes civil substantive law and civil procedural lawjoined with each other, declares and indicates procedural subject status of the parties,defining the interaction and rational division in fact-finding and law-applyingbetween the parties and the court in the proceeding, indicates the integration ofpublic element to settle the disputes and private element in dispute nature, whereas itis the rational system that public authority and private right explicitly distinguishfrom each other and interact and coordinate with each other and private rightsubjects promote the proceeding each other. In order to achieve the said functionsunder the doctrine of adversary hearing in civil procedure involving foreign factorsin China, co-ordinations and arrangements shall be made in the whole legalinstitution and profound legal culture environment shall be cultivatedsimultaneously.
Keywords/Search Tags:Doctrine of adversary hearing, Doctrine of disposition, Doctrine ofProcedural subject status, Ultimate fact, Recognition andenforcement of judgment
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