| As a scheme to protect the litigant's right to prosecute and to solve the “difficulty of filing a case”,case-filing registration system has been favored by the legal theory circles of our country.But it has not been implemented because of the deep reform of the civil case-filing thinking and system in our country.It was not until October 2014 that the“Decision of the Central Committee of the Communist Party of China on Comprehensively Promoting Certain Major Issues in Governing the Country by Law” formally proposed that“change case-filing examination system to case-filing registration system”,which officially opened a new chapter in the implementation of the case-filing registration system in China.It has been more than four years since then.Many measures of local courts have been basically implemented,when everything seems to have settled,it is necessary to conduct a panoramic examination and discussion on the case-filing registration system to take a prudent view of the current situation of the case-filing registration system reform and to clarify the future development direction.In addition to the preface,the article is divided into five parts.The first part is the historical evolution of China's civil filing system.Looking back at history is beneficial to explore the origin and mission of the case-filing registration system in China.The civil case-filing system in the modern sense of China can be traced back to the new-democratic revolutionary period.The government of revolutionary base areas has established many concepts and rules related to prosecution and case filing,and established the prototype of China's modern civil case filing system.During the trial period of the Civil Procedure Law from the founding of the People's Republic of China to 1982,China's civil case filing system has been further explored in twists and turns,and has accumulated rich experience in cases filing.However,in general,there was no clear boundary between case filing and trial during this period,and it was in a state of unity of trial and approval.The promulgation of the Civil Procedure Law(Trial)in 1982 marked the formal establishment of China's modern civil case filing system,and its basic content continued until the reform of the case filing registration system.Appropriate plaintiffs,clear defendants,specific litigation claims and factual basis,court supervisors and jurisdictions together constitute the conditions for civil prosecution in this period.The court must conduct substantive examination before filing the case,thus forming the beginning and basic model of China's filing system.Due to the high-order requirements of the case-filing examination system for the conditions ofprosecution made the “difficulties in filing a case” gradually become a phenomenon that cannot be ignored in judicial practice,and the reform of case-filing registration system has emerged as The Times require.Under the background that the Civil Procedure Law has not changed the conditions for prosecution,the reform of the case-filing registration system has mainly explored from the perspective of optimizing the prosecution and acceptance procedures,which to some extent promotes the smooth exercise of litigants' right of prosecution.But the same time,the high-level conditions of prosecution still exist,and the division of labor between the case filing and the trial is still unclear and the connection is not smooth.The reform has obvious limitations.The second part is the extraterritorial comparison of the civil case-filing registration system.The case-filing registration system is a beneficial reference for the extraterritorial case filing system.Therefore,a comprehensive comparison and summary are made on the prosecution conditions,petition requirements,prosecution methods,court review and effectiveness of the prosecution of the case filing system outside the region,which has a positive reference value for China to build the case-filing registration system.The extraterritorial filing system generally only requires the parties to provide qualified pleadings and pay the litigation costs.In addition to the above requirements,the conditions for prosecution in China include the requirements of litigation and even the protection of substantive rights in extraterritorial civil litigation.Extraterritorial civil litigation generally distinguishes between necessary items and arbitrary items,and the necessary items are generally required to meet the criteria for embodying the lawsuit.However,China does not make a specific distinction between the items recorded in the complaint.In addition to the basic elements of the complaint,the parties should also preliminarily clarify the reasons for the establishment of the claim.Extraterritorial civil litigation generally requires the parties to submit a written complaint and follow the party's doctrine,and the service of the complaint to the defendant according to law is regarded as the point of start time when the litigation is initiated.This is obviously different from China.The extraterritorial courts generally conduct a formal format review of the complaints.Although the legislation of some countries allows the court to review the litigation requirements at this stage,the absence of the litigation requirements does not hinder the initiation of the proceedings,litigation requirements and some rights protection elements for a comprehensive review.The extraterritorial court does not conduct a substantive examination of the prosecution.Therefore,the civil prosecution actactually has the effect of directly initiating the proceedings.However,in China,the civil prosecution action needs to be accepted by the court before the formal commencement of the proceedings.The third part is the basic theory of the civil case-filing registration system.The implementation of the civil case-filing registration system is a profound interpretation of the principles and values of the civil procedures,including the protection of the right to appeal,the principle of judicial settlement of disputes,the boundaries of civil jurisdiction,the effectiveness of the complaint,and the structure and function of the complaint.The case-filing registration system is the system response to the idea of the right to appeal.Under the influence of the concept of justice,the constitutional of the right to appeal is established in more and more countries,and the protection of the right to appeal is the specific expression and realization of the constitutional of the right to appeal at the level of procedural law.Its basic requirement is to eliminate all obstacles for the parties to resort to justice and ensure the parties' appeals to judicial relief.The case-filing registration system is also an inevitable requirement of the principle of judicial dispute resolution.The judiciary must not refuse the judgment and the final judicial settlement of disputes,which determines the general relief and authority status of the judiciary in the settlement of disputes.As the first threshold for the judicial system to face disputes,the absence of substantive conditions is the direct implementation of these two principles.The construction of the case registration system must follow the basic boundaries of civil jurisdiction.The object of civil jurisdiction adjustment is the legal dispute with civil equality.The scope of protection of litigation rights should be consistent with the limits of judicial power.It is not allowed to limit the scope of litigation rights at will or exaggerate the jurisdiction of trials.The evaluation of the effectiveness level of the lawsuit is the core basic theory of the civil case-filing registration system.The distinction between the different evaluations of the establishment,legality and rationality of the lawsuit is the legitimate basis for the lawsuit element to be stripped from the litigation requirements and the requirements of the case,and its litigation requirements.The principle requirements of the structure and method of trial also determine the mode of operation of the registration system.The structure and function of the complaint is the most microscopic and direct theoretical guide to the establishment of the case-filling registration system.According to modern litigation theory,the elements of the complaint only include the necessary items of the complaint,which is inseparable from the functional orientation of the pleadings.Thepleading has the basic functions of prosecution and other derivative functions.The implementation of the case-filing registration system in China is the requirement for the pleadings to return from the omnipotent type to the basic functions of prosecution.The fourth part is the framework construction of China's civil case-filing registration system.The construction of the case-filing registration system needs to establish the basic principles and paths as a whole.Optimizing the structure of the trial is the first principle.The division of labor and convergence at all stages of prosecution,filing,trial and judgment should be straightened out to promote the efficiency of the trial.The principle of matching program procedures with program devices should be followed to achieve the coordination between the two structures and functions,time and space,and review and trial methods.The principle of division of labor and resource allocation should be followed,taking into account the optimization of procedures and the rational allocation of judicial resources.We should adhere to the principle of combining extraterritorial experience with China's national conditions and take into account the principle of the country,and give maximum respect to the principle of litigation based on the national conditions.When establishing the above principles,we should also see that the justice is only part of the country and social governance structure of China,but not all of it.Chinese judicial accustomed to from the angle of power control in the face of disputes objective mind-set,judicial capacity is limited,case-filing registration system to the case on the split between values and norms conflict.All these factors determine that it is difficult to complete the registration system in China.We must adhere to the basic path of step-by-step promotion and promote the different goals of registration system in the distant,medium and near future in stages.The final goal of the case-filing registration system is to realize the strict case-filing registration system.The medium-term planning is of a transitional nature.Only some of the litigation requirements with the strongest powers and public welfare and the strongest national policy control are reserved in the conditions of prosecution,so as to minimize the resistance to reform;the short-term goal is to improve the existing review and trial procedures in the context of maintaining the current high-level prosecution conditions in China for a long period of time.The fifth part is the concrete construction of the civil case-filing registration system in China.Specifically,the long-term plan takes the lower order of the prosecution condition as the core,including submitting the qualified pleadings,paying the litigation costs and serving the pleadings on the defendants.At the same time,the receiving,review,correction,rejectionand relief of the pleadings are set as the procedural structure.In the long-term planning,with all the litigation elements of the post-trial,the filing court will also be cancelled or transformed into a litigation service center.The medium-term plan still retains the court supervisor as the prosecution condition,which reflects the state's most basic control over the entry of relevant disputes into the field of civil justice,thus forming a system of prosecution conditions of “court supervisor and litigation legal and payment of litigation costs and pleadings served on the defendants”.The court's directors are based on the jurisdictional boundaries,and the law can explicitly exclude from the scope of the head of the court disputes,academic disputes and internal disputes of the company in the field of autonomy which are not equal and legal disputes arising from policy legacies and other reasons.The near-term plan is to make technical improvements to existing review and review procedures.The review of the litigation requirements by the filing court should be positioned to exclude obvious unlawful litigation.Based on this,the principle of presumption of the elements of the lawsuit should be introduced.At the same time,the internal trial order of litigation requirements should be clarified,and the focus of reviewing litigation requirements should be placed on authority and abstraction,complexity,public welfare litigation requirements;And the implementation of short-form review.The trial court should focus on the litigation requirements and the presumptions of litigation requirements that are closely related to the case.The trial of the litigation requirements of the trial court and the trial of the case may be carried out as appropriate,or may be carried out first.The filing court implemented the model of “a small number of post judges and sufficient judge‘s assistants”,gradually weakening the weight of the function of case-filing review and strengthening the function of litigation service.In the implementation of the case-filing registration system,the electronic network case-filing,trans-regional case-filing,and the connection with multiple dispute resolution are all important supporting mechanisms,which need to be promoted together to play the linkage effect of reform. |
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