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Research On Procedural Sanction Mechanism In Civil Procedure

Posted on:2016-09-04Degree:DoctorType:Dissertation
Country:ChinaCandidate:D C XuFull Text:PDF
GTID:1316330482458163Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
In jurisprudence,liability is both the inclusive evidence of existence of some institution,and also the practical power of maintening the insititution. However,in the time of right discourse,liability of civil litigation never gains the appropriate place in the civil procedural system,and has been out of main field of study vision. As one kind of civil procedural obligation, procedural sanction has been under the fiece criticisms. Even though,it never completely disappers. In contrast,it has been trying to justify its legitimacy in legaislation,judicature and research. But in contrast with the procedural sanction theory in criminal procedural law,the resarch of the procedural sanction in civil procedural law is plain and dispersive. So the summary and generalizaion of all kinds of procedural sanction means is helpful in recognization and jusitifying the legitimacy of this sanction. Besides,the legislator and judicial officer could obtain some inspiration.The procedural sanction is different from the subsantial sanction and traditional civil procedural sanction. It creates the connection between the procedural illegal act and the substntial result. Because it try to protect both the private procedural interest and public interest,it looks rigid and ruthless. So it faces up with cricisims from constitution,substantial law and moral field. Because of this,any single method of research could not relieve the doubts and critique. This paper adopts traditional normative analysis method,economic analysis,sociological analysis and ethical analysis,so as to make an objective judgement for the advantage,disadvantage and the future of procedural sanction. This paper consists of five chapters. The content are summarized as follows:The first chapter is about the basic theory of the procedural sanction. Firstly,I discuss the meaning of sanction from the vertical and horizontal perspective,reflect on the deficiency of traditional civil procedural sanction system,and put forward the definition of procedural sanction on the basis of comparison with procedural sancion in the criminal procedural law,so as to make full preparation for the deep and broad study for the next chapters; Secondly, I analyze the functions of the procedural sanction. It includes:justifying the civil procedural regulation,strenthening the effectiveness of civil procedural law and adjusting multipal values of civil litigation; Lastly, I describe the criticisms of the procedural sanction and make some replys.The second chapter is about the jurisprudence basis of procedural sanction. Although the procedural sanction has inherenct deficiencies, many countries and areas of two legal systems have some regulations about all kinds of procedural sanction. In general,this regulations is based on three jurisprudence basis:aim of civil action,litigation faciliation obligation and principle of good faith. In this chapter,I describe the outline of aim of civil action,explore the funcion of procedural sanction in adjusting several aims of civil action,and then describe the evolution of the cooperative system and development of the litigation faciliation obligation,explain both the promoting obligation and the proof cooperative obligation. At last,I explain the juristification of the procedural sanction on the basis of the principle of good faith.The third chapter is about the applicable elements of procedural sanction. From the construction of system,the applicable elements is about the ontology of procedural sanction system. On one hand,I describe the basic spirit of law of applicable elements,explore the subjective applicable elements and the objective applicable elements; On the other hand, I make a deep analysis on the main divergences about the applicable elements. This description and analysis is some limit and guidence for the comparative investigation of the fourth chapter. As the concrete contens, this chapter explain the basic spirit of law of applicable elements of procedural sanction from three perspectives at first. Then I explain the subjective applicable element and method of judgement; At last,I explain two objective applicable elements of procedural sanction.The fourth chapter is about comparative investigation of procedural sanction. This chapter is an investigation of related regulations of Gemany,Japan,Chinese Taiwan area,America and England. Most countries and areas of two legal systemes carryed on judicial reform after the Second World War,in order to deal with the problems like the delay of action,high litication cost. This situation reached it's peak at the end of twentieth century. The procedural sanction played an important role in the judicial reform. However,because of different rational concept of litigation, litigation jurisprudence the situation of development of procedural sanction of two legal systems is different. In fact, the investigation also shows there is one tendency of procedural sanction of two legal systems. For example,the applicable elements,discretionary power,procedural gurantee and supportive institutions are similar. This comparative investigation provides necessary sample for construction of our procedural sanction system.The fifth chapter is about current situation and prospect of Chinese procedural sanction. For the specific contents, I firstly summarize and reflect the regulation and judicial practice of our procedural sanction. And then I put forward two ways of reform, so-called internal way and external way. The internal way includes ontic way and procedural way. Secondly,I explore the necessary for constructing objection procedure of procedural sanction horizontally and vertically. Finally, this chapter put the procedural sanction mechanism under the background the overall civil procedural system, explore the evidence-gathering system,evidence exchange system and the system of judge's clarification. So the procedural sanction mechanism is finally completed.
Keywords/Search Tags:legal liability of civil action, procedural sanction, applicable elements, construction of prodedure, connection of systems
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