Research About The Opportunistic Behaviors In Civil Litigation

According to the judicial reality that procedural liberalism is increasingly abused,this paper starts from the fundamental premise of “reasonable person's assumption and presents a systematic research about the opportunismin China'scivil litigation during its transitional period,following the analytic path of legal realism and combining the research methods of economics,management,law and socialism.Through comprehensive analysis about the causes,characteristics and functional mechanisms ofopportunism incivil litigation,this paper proposes that opportunistic characteristics not only exist in theparties involving proceedings,but also exist among the judicial staffs when they making judgements,and even exist among the higher authorities' management,with varying degrees.Therefore,it is essential to go beyond separatemechanistic reform and take an integral,systematic and interactive approach to achieve an institutional improvement.This paper has eight chapters including an introduction.The first chapter is introduction,representing the origin,subject,method,resources and etc.,and also carding the current researches and references.The second chapter defines the research subject.Through the comparative analysis between those relevant concepts,such as reasonable person assumption,opportunism in litigation and abuse of action rights,and the research subject of this paper,it defines the connotationaland extensional concepts of the latter,therefore lays down a theoretical foundation for the following analysis.The third chapter analyzes the opportunistic behaviors of parties in proceedings and how to regulate this kind of behaviors.Opportunistic behaviors of parties in proceedings can be divided into two stages based on time nodes: opportunism in prosecutionand opportunism in trial.The former primarily includesthe prosecutions aiming at threat and legal instruments.The latter mainly addresses court show and court threat.By analyzingthe representations and functional reasons of the above mentioned opportunistic behaviors,this paper elaborates why the regulatory mechanisms of Courts are weak now.The fourth chapter discusses the influence of opportunism on judges' judicial ideas.A judge choosingjudicial restraint or judicial activismin a specific case largely depends on the different judicial coststaken by the judge for these different judicial ideas.However,judicial costsinspecific cases taken by the judges are decided not only by the costs to search for judicial basis,but also by the influences resulting from their judgements.By means of modelling analysis,it indicates that judges prefers to a low-cost judicial method instead of simply following the judicial ideological guide of judicial restraint or judicial activism,in light of cases' complexity and concerning of minimizing the judicial costs on their side.The fifth chapter focuses on theopportunism in appealprocess.Around the controversyof if there is reverse choice in appeal process,this paper through analyzing case by casethe different judicial costs of remand or commute,proposes that although to some extentreverse choice exists in China's appeal process,judges in appeal prefer to affirm the original judgments for cases of not much disputesinstead of commuteorremand,since there is a reporting mechanism inappeal process,which decreases the success probability for opportunisticappeal and,combiningBayesian Theorem,appealers' prevailing expectation.From a long term,with the addition of appeal fee reform and evidence update restrain,opportunisticappeal will be limited in a certain scale.The sixth chapter explores the opportunism in civil execution procedure.Taking judge who executes reconciliation as research subject,in this chapter it depicts case by case the judges' backgrounds and functions in executing reconciliation.Based on it,this paper analyzes the institutional reasons for judges' opportunistic behaviors in executing reconciliation,as well as the adjustment effects achieved between judicial practices and formal legal rules through judicial interpretations and regulatory documents.Therefore,it proposes improving measures from a microscopic viewfor execution reconciliation system;designing proceedings taking property status of theperson subjected to executioninto consideration;enhancing legal supervision for execution reconciliation;introducing reminding rules for parties and etc..The seventh chapter summarizes this paper's research value.Through comparing Coase Theorem and Coase Theorem ?,it notes the latter is notinferred from the former,but an empirical proposition.The reason for Coase Theorem ?having empirical support is that judicial activities generates both jurisdictional costs and benefits.Since jurisdictional costs and jurisdictional benefits fall on different subjects,judicial staffs as reasonable person lack propelling force for the judicial outputs,which in turn constrains the jurisdictional benefits that might be provided to society.Therefore,the State should establish institutional mechanism that proportionately externalizes the judicial costs laid on judicial staffs,in order to incent judicial outputs and provide more jurisdictional benefits for society.The last chapter is a conclusion,which reemphasizes the universalization of opportunism in litigation,and therefore promotes an integral,systematic and interactive perspective forreform.