| Mongolia fully emended the corpus juris of code of civil procedure law in2002, which began a new transformation of the code of the civil procedure law. This study takes the transformation of the corpus juris of the code of civil procedure law in Mongolia as the object of investigation, and the research employs the historical, comparative, canonical and empirical approach to objectively and comprehensively survey the historical background, contents, and modes of the transformation of the corpus juris of the code of the civil procedure law in Mongolia. On this basis, this research also puts forward the inspirations of the transformation, and this aims to seek the references materials for the emendation of the corpus juris of the code of civil procedure law in China.Besides the introducing and the concluding parts, this thesis consists of seven chapters.Chapter1focuses on the historical background of the transformation, and it probes into the internal factors of the transformation of the code of the civil procedure law in Mongolia from the perspectives of the political transformation, the economic transition and the creed transmutation. Mongolia passed the new constitution in January1992, in which the name of People’s Republic of Mongolia was changed into Mongolia whose full name is Mongolia Republic of Parliament, implementing checks and balances system."The great change in law occurs along with and depends upon the changes of the society". The political transformation in Mongolia is the precondition of the transformation in law, and meanwhile the jural transformation is the central content of political transformation and the demand of fathering the new nation. Mongolia, who gave up socialism in politics, began to transit into the market economy in the economic field. After nearly ten years’turbulence, the economic transformation tended to be stable at the beginning of this century. The normal market system has been established, and the persistent, stable and healthy development of economics has built stable economic basis for the modification of the corpus juris of the code of civil procedure law. During the whole process of the political reform and the economic transformation, the ideas of democracy, freedom, equality, human rights, justice, efficiency, independence and law paramountcy established by the constitution have been rooted in people’s minds. The Mongols, who had the long tradition of administrating according to law, began to pay more attention to the procedure justice, efficiency and the protection of the litigation rights of the party, and to reconstruct the content of the corpus juris of the code of civil procedure law by applying the modern justice ideas. Chapter2is concerned with the brief introduction to the new corpus juris, beginning with the review of the five fundamental establishment and modification in the history of Mongolia of the corpus juris of the code of civil law, continuing with the introduction of the main contents of2002’s new corpus juris of the code of civil law in Mongolia, and ending with the objective summary of the characteristics of the new corpus juris of the code of civil law. The first corpus juris of the code of civil law in Mongolia was established in July1927, and then was modified respectively in May1952, June1967, May1994and January2002. The corpus juris of the code of civil law modified in January2002was a new one under the new political and economic conditions. The new corpus juris started with the general principles, and then prescribed the first trial court procedure, court of cassation procedure, consistory procedure, retrial procedure, execution procedure, and foreign affairs involved procedure. The law principle, lawsuit participant, domination, evidence, and legal fare were all included in the general principles. The new corpus juris regressed the original look of the continental law, but it lost the nationality legal tradition. The new corpus juris also brought forth the fully new justice ideas, but it cannot avoid the indigence of the legal language, the lack of theoretical imperfection, and the great similarity to the corpus juris of civil law of the Russian Commonwealth.Chapter3is about the reform of the law principles. This chapter starts with the spallation of the name of the law principle, which discloses the evolutionary process from basic principle to law principle, and compares and evaluates the contents of the reform of the law principle. The reform of the law principle is presented as two aspects:one is to delete the principles relevant to socialism and the other is to add the principles which have the obvious characteristics of the continental law system and the principles to upgrade the lawsuit position of the party and to ebb the function of the court. The deletion and the addition become the basis of the reform of the principle of this corpus juris. The civil action theory divided the law principles into general principle and specific principle. The general principles include equality principle, judge independence principle, the court executing the jurisdiction principle, law paramountcy principle, public trial principle, trial in Mongolian principle, discussion trial principle, law of nations priority principle, and trial-have-to-be-executed principle. The specific principles include direct speech principle, court trial uninterrupted principle, autonomous principle, and debating principle.The corpus juris of the code of the civil procedure law in China has much similarity to that in Mongolia before reform in the aspect of basic principle system. The principle and contents of the corpus juris of the code of the civil law in China in1991originate from that of the former Soviet Union, and has not been modified greatly. It is proposed that we not use the term "basic principle", but "civil action principle". Meanwhile, the law principle ought to be defined as the instructive principle in the whole process of the civil action or certain lawsuit phases. The contents of law principle is supposed to be optimized, during which the common lawsuit law principle, outdated principles, and those principles not belonging to the law principles are removed. At the same time, the principles reflecting the modern justice ideas are to be supplemented, and scientific law principle system is to be constructed.Chapter4is about the reform of the lawsuit participants. Besides introducing the basic theory of lawsuit participants, this chapter discusses approach to upgrade the lawsuit position of the party, the procedure of the lawyer’s participation in the civil action, the conversion of the position of procuratorial organ, and the original look of the third person system. Among them, there are two contents that can be used as reference in the modification of the corpus juris of the code of the civil law in China:one is the conversion of the position of procuratorial organ in the civil action, and the other is the original look of the third person system. According to2002’s code of civil law of Mongolia and the procuratorial organ law of Mongolia, the law supervisorship of the procuratorial organ in civil action was cncelled, and the prosecutor participates in the civil action as the party, exerting the same rights as the lawyer. The third person system in China and Mongolia’s civil action uses for reference the former Soviet Union’s1964Soviet Russian Corpus Juris of the Code of the Civil Law. That is, it divided the third person into that having the independent request right and that not having the independent request right.The third person in China is distinguished from that in Mongolia and Soviet Union in that China categories the third person as the party, but Mongolia and Soviet Union treat the third person as the participant independent form the party. The original look of the third person system is the lawsuit participant independent from the party, and this is the source of the deficiency of the third person system in China. To revert original look of the third person system is the best way to solve the theoretical deficiency of the third person system.Chapter5deals with the reform of the evidence system. The evidence system in Mongolia’s new corpus juris of the code of the civil law adds the reasonable factors of the British-American law system on the basis of the traditional model of the continental legislation. This corpus juris gives the clarified definition of the term evidence, distinguishes evidence from evidence materials, and classifies the evidence scientifically. The new corpus juris not only follows the basic theory of the continental law system, such as party and the third person’s authentic narration obligation, self-acknowledgement, allotting evidence obligation by criteria theory, but also uses for reference the system of the British-American law system, such as the privilege of the attest of the attestor, the punishment of not appearing in court without any reason, the rule of illegal evidence exclusion, the best evidence principle of the written evidence, and the time limit of the quote.The evidence system in China is in the process of perfection, but the mode of perfection still lies in the level of justice interpretation. The perfection in the legislation has nor been started. The evidence legislation and theory still do not give the scientific definition to the term evidence, and consequently the evidence and the evidence materials are not clearly distinguished from each other. The classification of the evidence is far from being scientific and it leads to the deficiency of the attestor system. Consequently, if we use the experience of Mongolia as the reference, the evidence legislation in China is to define evidence, to classify the evidence scientifically, and to improve the relevant system of the attestor.Chapter6is the reform of the trial procedure. This chapter concerns itself with the simplified procedure in the first trial procedure, family affairs lawsuit procedure and supervision procedure, and the retrial procedure. The simplified procedure is introduced into the first trial procedure, and this is an act to improve the lawsuit efficiency under the circumstance of the lawsuit delay. In view of the problem in the simplified procedure and the judge’s universal fault applied in the simplified procedure, the genuine efficiency of the simplified procedure in Mongolia has not appeared.The family affairs lawsuit procedure meets the demand that the family affairs cases are increasing, and this is used to hear and solve the marriage relations and parentage relations. The supervision procedure is applied in the law application issues by the Mongolia Supreme Court in the trial by the first trial court and the court of Cassation. In2007, Mongolia adds in the supreme court the meeting attended by all the judges, and this aims to strengthen the final trial in the law application issues. The Mongolia retrial procedure reform experiences from trial supervision procedure to the division of the trial supervision procedure and retrial procedure, and then to the deletion of the trial supervision procedure and preserving the retrial procedure only. In fact, the trial supervision procedure and the retrial procedure belong to two different procedures. During the process of the trial supervision procedure, the prescription in which the court automatically start up the retrial procedure mix up the function of the court and infringe the lawsuit rights of the party, and therefore it ought to be deleted. On the contrary, the retrial procedure which stinks the autonomous ideas of the party should be brought into play.The allotting of the function of the court, the trial system, and the trial supervision procedure still remain the original model when it was set up. The courts of each level all manage the first trial civil cases, and the final trial degree is low. The law trial and fact trial are not distinguished from each other, and the trial supervision still plays the significant roles. Therefore, these lawmaking rules lay behind the development of the time. In this sense, China should carry out the third and final trial, reallot the functions of the courts of each level, cancel the trial supervision procedure, and reconstruct retrial procedure.Chapter7is about the reform of the executive procedure. This chapter discusses the courses in which the Mongolia carried out the separate lawmaking of the executive procedure, the setting model and authority of the executive institution, the lawmaking model of the executive measures, the human rights guarantee of the executive procedure, and the measures to solve the execution difficulty. These contents are the reform measures applied by Mongolia in recent years in the civil executive procedures. The present The Mongolia Law of the Court Trial Execution was passed by Mongolia parliament on January10,2002, and put in force on September1,2002. This was the mirror of the independent lawmaking of the executive procedures. The executive institution of the civil cases in Mongolia is the trial executive office, responsible for the execution and supervision of the civil cases. The executive measures are ones based on the different natures of the executive standard, and respectively prescribe the chattel, the estate, and other properties and acts. The executive procedure pays more and more attention to the protection of the human rights in the reform process, and to the strict limit of the executive time, the executive measures, and the executive standard. This is to prevent the executors from abuse the authority.The executive difficulty also exists in Mongolia, and in recent years Mongolia has carried out many measures to solve this problem. First, it perfects the lawmaking, and makes up the details of the executive measures to make the executive measures more intelligible and feasible. Second, it selects the qualified executors. Mongolia selects the executors through the special examinations, and carries out the special assessment. The executors have the rights to hold guns, and are endowed with military rank. These measures built up the authority of the execution, and made the execution not difficult any more.Mongolia made The Court Trial Executive Law, set up the executive institution independent from the court, and established the perfect executor selection system. Paying much attention to the human rights protection, and carrying out positive measures to solve the execution difficulty deserve detailed investigation and reference for us, and provide the valuable references for the executive procedure lawmaking in China. |
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