On The Procedure Discretion

Procedure discretion is a inseparable character of civil jurisdiction, and an important part of judicial power. Although legal systems are various, but the procedure discretion is paid more and more attention in most countries today. Based on researching on concept, nature, type and foundation, the article tries to reveal the regular pattern about procedure discretion. Firstly, in the legal collocation level, how to strike the balance between procedure discretion and procedure autonomy of party? Essentially, this argument is about functions of judge and party in civil litigation. Secondly, in the judicial operation level, how to prohibit arbitrariness and vandals of judge? And this argument is virtually about the way of keeping balance between exercising procedure discretion and observing procedure rules. By implication, the dominant theme of the article is to dispute the point of improving procedure discretion system in our country, basing upon examining current situation of legal collocation and judicial operation of procedure discretion. The goal is to make procedure discretion play an active role in civil procedure, as well as restrain arbitrariness and vandals of judge in the process of exercising procedure discretion.Except for the introduction, the article is divided into five parts.Chapter1gives a general overview of the subject. Through defining and anglicizing the feature, procedure discretion can be compared with similar conception, such as substantive discretion, and litigation command, and so on. In its internal, procedure discretion can be classified according to certain standards. Procedure discretion is mainly applied in procedure operation and forming substantive matter. Above discussions can lay a foundation for further research.Chapter2discusses elementary theory of procedure discretion. Besides possessing the general theory foundation, procedure discretion also has its own basis because it can reflect the nature of public power of civil jurisdiction, correct the limitation of adversary lawsuit mode and materialize judicial benefit. It is should be realized that procedure discretion not only has functions, but also has defects. The defects include that its subject has his own limitations, and procedure discretion might deviate from the democracy of litigation and damage the stability of procedure.Chapter3reviews oversea procedure discretion. Based on the study on procedure discretion in both continental law system and Anglo-American law system, it is can be found that there are some similarities and their own different characteristics in both law systems. Similarities of them can reflect the basic rule of the system as a whole, which is worthy of reference for absorption. The comparative differences are not to evaluate the advantage and weakness, but to provide a more accurate reference system for perfecting the procedure discretion system in China.Chapter4examines the present situation of procedure discretion in our country. From the perspective of historical evolution, the procedure discretion system has made more rapid progress. But compared with the requirements of modern judicial system and practical needs, there are many deficiencies worthy of reviewing, either in legal rule collocation level or civil judicial operation level.Chapter5gives some constructive suggestions about perfecting the procedure discretion in our country. On a macro level, the basic position of the procedure discretion should be made in two dimensions, including keeping finiteness in legal collocation and shaping service idea in the purpose of operating. As a result, the procedure discretion in the static level should be particularly collocated in procedure operation and forming substantive matter, In the dynamic level, procedure discretion should be regulated under legal principle, rational principle and the principle of good faith. At the same time, a scientific supervision mechanism should be reasonably built for it.