The Transformation Of The Principle Of Disposition And Its Interpretation

The principle of disposition is one of the basic principles of the Civil Procedure Law.It means that the parties have the right in civil proceedings to dispose of their substantive and procedural rights within the scope of the law.Article 13,paragraph 2,of the Civil Procedure Law clearly stipulates this.The doctoral thesis deals with the subject of "the transformation of the principle of disposition and its interpretation"from the dual perspectives of jurisprudence and civil procedural law.Taking the theoretical and institutional development of civil procedural law during the period from the year of 1982 to 2015 as the material,this doctoral thesis describes and explains the theory,legislation and practice of the principle of disposition in the civil procedure law of China and its changes,from four dimensions:provincial change,technological improvement,public interest restriction and institutional misuse.The thesis reflects on the basic concepts and legislative techniques in the principle of disposition and the implementation of its institutions,and attempts to achieve a systematic and jurisprudential understanding of the principle of disposition in the civil procedure law.Chapter Ⅰ,"Provincial Change of the Principle of Disposition",mainly attempts to point out that,even if the theoretical definition and legislative expression of the principle of disposition have not changed slightly,the specific understanding and implementation of the principle of disposition may be very different,and that the specific "provinces" of the principle of disposition are adjusted by the specific social background and legal concepts of the times.This chapter mainly explains the changes of the provinces of the principle of disposition by the changing process of the two rules of responding jurisdiction and the admission.Through the explanation and analysis of the long-term absence and final establishment of the rules of responding jurisdiction,this thesis attempts to express and prove that the principle of disposition has been under the internal pressure of the concept of "state intervention" for a long time,and also in the external interference of legal concepts such as "errors must be corrected".Through the explanation and analysis of the long-term absence and the final establishment of the admission rule,this thesis attempts to express that the principle of disposition may be excluded from application because that the judge has been provided the absolute dominant right to "fact determination" by the Civil Procedure Law.This is the important evidence to prove that the principle of disposition is directly related to the system or basic mode of civil litigation(Inquisitional System or Adversary System).Chapter Ⅱ,"Technical Improvement of the Principle of Disposition",mainly attempts to point out that legislative technology will have a substantial impact on the implementation of the Principle of Disposition,and that the actual implementation of the Principle of Disposition needs refined improvement in legislative technology.This chapter mainly takes the withdrawal of the suit rule and the defense invoker of the limitation of action rule as examples to illustrate two methods of legislative technology improvement.Through reflecting on the withdrawal of the suit rule in the Civil Procedure Law of China,this thesis advocates changing the general legislative technology of "judge’s general discretion" to the legislative mode of "combining principle with exception"(if there is any exception),that is,in principle the disposition should be allowed,but there are exceptions.The exceptions may be in a list of statutory circumstances or an abstract provision.By describing and reflecting on the changes of the defense invoker rule of limitation of action,this thesis advocates a clear distinction between substantive and procedural issues,to avoid the application of rigid procedures to substantive issues,resulting in the deprivation or "acting on behalf" of the parties of the right to dispose.Chapter Ⅲ,"Public Interest Restriction of the Principle of Disposition",mainly attempts to put forward two types of restriction of the parties’ rights of disposition.Every valuable thing has its limits,at least of the scope or conditions of its application,and needs to face special circumstances.Therefore,by explaining and analyzing the changes of the rules on the scope of civil trial on appeal,this thesis attempts to argue that in the design of conventional civil procedure,the rule of "the restriction of the right of disposition on the judicial power",which is the core of the principle of disposition,should be broken,and perhaps even judges should be allowed to act according to their powers,when the case concerns the interests of the state,the public or the third party.Through reflecting on the rules of the Judicial Interpretation of Civil Procedure Law that allow parties to withdraw and reconcile in public interest litigation,this thesis argues that in order to strengthen the particularity of public interest litigation and avoid the privatization of public interest litigation,the logic of disposition in private interest litigation should not be simply applied to public interest litigation.Moreover,at least strict rules should be set up,and supervision measures should be strengthened in the system.Chapter Ⅳ,"Misuse of the Principle of Disposition" is mainly an attempt to criticize the two improper ways of implementing the principle of disposition in legislation and practice.The right of disposition of the parties can limit the judicial power of the court,and the judicial power of the court also can supervise the exercise of the right of disposition of the parties.Through reflecting on the conventional practice of applying for withdrawal the suit after conciliation in lawsuit,this thesis advocates that the rules of conciliation in lawsuit should be re-examined and designed to strengthen the legal effect of conciliation;if the two parties reach a conciliation agreement in lawsuit and therefore apply for the withdrawal of the suit,according to the current legal framework,the court should make a mediation document based on the conciliation agreement according to its authority,rather than withdrawal grant.Through reflecting on the judicial policy of "priority of mediation",this thesis argues that we should on one hand strengthen mediation as an aspect of the typical embodiment of the principle of disposition,in order to fully guarantee the parties’selectivity and voluntariness,and on the other hand weaken(rather than negate)mediation as an aspect of the court’s judicial power,especially abandon the way of performance assessing of judges-made mediation which urges judges to mediate to increase the mediation rate,and avoid the problem of "coercion".