A Study On The Principle Of Concentrated Trial In Civil Actions

For the purposes of promoting the dipute settlement function of the litigation system, improving the trial efficiency, and protecting the interests of the involved parties , various countries have adopted concentrated trial as a main scheme, and made considerable changes to the civil procedure. The principle of concentrated trial, as a basic principle in civil procedure, marks the pursuit of judicial justice and judicial efficiency, displaying impressive theoretical power and institutional advantages. Exploring the revisions of civil procedure law in countries of continental law system like Germany, Japan and China Taiwan, a theme of increasing clearness is to lay down the principle of concentrated trial in the civil procedural law, simultaneously to abandon the severability of trial. In the process of consolidating the reforms in civil trials aiming at the principle of concentrated trial , with further relevant theoretical researches, the rationality of the principle of concentrated trial has become widely accepted, and such a principle has become the ultimate goal of further reforms in the civil judical reform in various countries. Due to the tradition of jury, concentrated trial has been deeply and naturally incorporated into the civil litigation system of of common law countries. Furthermore, practices in UK and US since 1990s required more active role of a judge in terms of managing and facilitating litigation, also aiming at concentrated trail. Accordingly, trial concentration has become a trend in countries with the ruling of the law around the world. This trend brings impacts on China's reforms in civil procedures. However, as a principle as important as other trial and procedural principles such as the principle of open trial and the principle of oral argument, the concentrated trial has not been received an adquate attention. The systematic exploration for it in the academic circle leaves no material results, while severability of case trial in judicial practices has become common practice almost without any constraint. Thus , introducing the principle of concentrated trial and making it adaptable to the judicial system in China have become an inevitable task of emergency, especially in the context of revising the civil procedural law.Starting from the concepts of the principle of concentrated trail, this dissertation clarifies the meaning of the concentrated trial principle, analyses its function and value, and demontrates its fundamental role in China's civil procedure law. With a series of comparative studies on the US, German and Japanese civil procedure laws, it furthermore comments on the disadvantages of the lack of concentrated trial in our country and proposes reforms and institutional restructuring from the perspective of trial concentration. It also investigates the role of the principle of concentrated trial in the legal system and its relationship with other parts of the legal system.The whole dissertation is composed of seven chapters:Chapter 1: Introduction: It focuses on the purpose, the scope and the methodologies of this research.Chapter 2: Besides reducing the trial frequency and costs and improving the efficiency, the value of the principle of concentrated trial is on the concentrated and continuous trial process, ensuring a judge making decisions with a fresh memory of the case, thus decreasing reliability on the record of the case. In addition, concentrated trial will also ensure the active participation of the involved parties and the public in the trial process, strengthen the trust of the parties in the judicial system and guarantee the application of the principle of open trial. This chapter also reviews different theories associated with this principle and then summarizes its implication for China's civil procedure law. Subsequently, it points out that the principle of concentrated trial should be adopted as a basic principle, and analyzes its connection with other principles.Chapter 3: It studies the legislation models of concentrated trail reforms and the lessons for China. It researchs the civil procedure laws in Germany, Japan and China Taiwan, discusses the development track of concentrated trial and its relation with other institutions, and compare the similarities and differences between countries and regions. These researches will serve as references for putting the concentrated trial in practice and restructuring civil litigation system. In learning from and adopting those existing legal provisions of the western countries, we may not only focus on wording and languages in the law, but also understand the reasons for the reform, and its motives and goals. For the theme of this research, to duplicate the existing system, detaching from the principle of concentrated trial, is the approach losing the quintessence.Concentrated trail, as a fundamental principle, will be materialized via a series of specific institutional arrangement, without which such a principle will be meaningless. Chapter 4 and Chapter 5 explore the principle of concentrated trial in some specific details. The discussion on the parties'obligation to facilitate litigation timely, the judge's authority of clarification, and sorting out the issues makes the principle of concentrated trial more specific. In Chapter 4, the writer believes that in order to apply the principle of concentrated trial, the parties must be required to perform with efforts their duty to facilitate litgation and to present with the court before the trial the facts, the evidence and other relevant litigation documents at their hands. The duty of jointly clarifying the case is an indispensable to the parties'duty to facilitate litigation process, the main content of which includes statement of facts and production of documents. The exercise of the judge's authority of clarification discussed in Chapter 5 is the core of his duty to facilitate the litigation. By informing the parties of their litigation rights, clarifying the factual issues, and explaining the legal rules and principles, the judge can make up for the deffiecency in the parties's capacity in action and can urge them to sort out and simplify their issues. It is an important way to promote the concentration of trial with the institutional power of the judge. Chapter 6 conducts research on the proceeding for sorting out the issues in civil actions. Sorting out the issues can specify the particular litigation object, urge the parties to work out timely the strategies for attack and denfence, and promot the compromise between the parties or the concentration of trial. In addition, it can protect the party against the sudden attack of the opposing party, impose restrictions on the judge's abuse of discretion, and improve the quality of the judgment and public credibility of the judiciary.Chapter 7: It about the direction of our efforts in putting into practice the principle of concentrated trial of civil cases. The purpose of all the above research is to provide theoretical support for the practice in streamlining and reforming the trial model. It also points out the defects in the severability of trial in our judicial practice, and puts forward the feasible scheme for putting into practice the concentrated trial. There is a summary of the whole dissertation in the end. It reiterates the pointviews and their grounds in this dissertation, explains the limitations on the research. It also makes some recommendations for future researches on the principle of concentrated trial, hoping that those researches will be favorable to solving problems related to the theme of this dissertation, or be references for the relevant legislation.