Research On The Pretrial Procedure Of Civil Litigation

Began with the late 80s in the 20th century, the reformation of enhancing the original intention of trial for the Civil Trial in China caused to focus on the importance of pretrial procedure in the world of theory and practice, the unique value of pretrial procedure began to be recognized by people and carried out extensive and in-depth discussion. Scientific and rational design of pretrial procedure will not only help to improve trial efficiency, and ensure the quality of court decisions, but also help to promote early resolution of disputes and reduce the cost of the parties to resolve disputes and improve the overall efficiency of judicial resources.Based on the two representative legal of the national development of pretrial procedure and the comparison of the developing process, combined with Civil pretrial procedures in our country's legislation and judicial practice, and proposed reconstruction of the civil pretrial procedure the specific ideas.There are six parts in the article. They are the introduction, basic theory of civil pretrial procedures, civil pretrial procedure comparison of two legal systems, China's civil status of pretrial investigation and assessment process, our basic system of civil reconstruction of pretrial procedure, the perfect of mediation and conciliation system of civil pretrial procedure.In the introduction, the author sorted out the international research on the civil status of pretrial procedure in order, summarized the Institute of civil pretrial procedures a theoretical and described the practical significance of this research ideas and research methods, innovative attempt described.The first chapter approach to the basis of the theory of the civil pretrial procedure. In this chapter, firstly, the author analyzes the use of pretrial procedures and preparation procedures in the semantic distinction, made from pretrial procedure reflects the unique value of the point of view, the use of the concept of civil pretrial procedure more appropriate to define the trial Based on the concept civil pretrial procedures outlined pretrial procedure with features. Secondly, the historical evolution of the procedure is introduced systematically of the two legal systems, Meanwhile, shows that the position of pretrial procedure in civil procedure increasingly important function of civil dispute resolution system, the realization of play the increasing influence. Finally, the system analyzes the pretrial procedure fixed with the collection of evidence, clarified an issue, to promote of dispute settlement in advance three aspects of the function.The second chapter inspected on the comparison of the two legal systems about the civil pretrial procedure. From the point of pretrial procedure, having evidence collected and fixed, sorting out the issues, and promoting the function of dispute settlement proceeding, the author of two legal representation of countries in the means and scope of evidence collection, sorting out fixed the issues method, and promote case without a trial and the end a comparative analysis of several aspects. By comparison we can see that the independent status of pretrial procedure has been widely recognized by countries, Either from the concept, or in specific provisions of civil pretrial procedures are reflected reflect more of the parties cooperated with the Court; At the same time, because of legal traditions, values and other differences, countries in contention design sorting out the issues process, the means and scope of evidence collection, judge in the role of the civil pretrial procedure, the end of civil pretrial procedure and other aspects of the way exist with there are some differences. By this comparison, I believe that according to the legal system and the reality of our situation, our country's reconstruction of civil pretrial procedure should learn more of the relevant provisions of civil law countries.The third chapter focuses on the legislative of civil pretrial procedure and judicial practice, and the author inspects the situation and makes the assessment. First, playing a role in pretrial procedure related to civil procedure law and the judicial system in the interpretation of specific provisions has a systematic introduction. Second, the judicial practice under different modes of trial runs civil pretrial procedure to inspected the situation, and we can find that from the study of China's civil litigation system has gone from a pretrial preparation and no pretrial procedure that there is no pretrial preparation preliminary pretrial procedure and then the change process has been established. Finally, the analysis of the existence of civil pretrial procedure have the main shortcomings:the legal activities of the parties pleading requirement is too simple, resulting in the initial pleading sorting out the issues, so it cannot play the role of diversion cases; law reinforced the party's burden of proof responsibility for collecting evidence but the parties did not exercise the right to provide protection, the scope of investigation and evidence collection the judges own motion or upon application are greatly limited, which makes pretrial procedure the evidence collected and sorting out the issues of contention cannot be effective realization of the function; lawsuit settlement the parties are not clear and effective measures to promote reconciliation, the lack of the parties, and the provisions of the court on the mediation process are imperfect and the actual operation of the drawbacks are caused by pretrial procedure for its role in solving difficult cases in advance is not so effective.In Chapter IV, the reconstruction basic system of civil pretrial procedure will be discussed. First, the idea of change is the basic premise of the reconstruction of pretrial procedure, and it should draw reasonable core of Cooperation, which make clear that the judge's interpretation obligation and the parties'duty to facilitate; should be concentrated trial in civil procedure, shearing is to focus on the independent doctrine of pretrial procedure become necessary. Secondly, we should refine the activities of the party pleading the relevant provisions, explicitly reply form, content, time limits, the legal consequences without timely reply. Third, to further standardize the system of exchange of evidence, clear evidence of exchange applicable to the scope of the case and evidence, who presided over the exchange of evidence, and improve the system and play a role in the exchange of evidence directly related to evidence collection, evidence time system. Finally, to establish two forms that by preparing pleadings and strive for through a special sorting out the issues process to determine the issue, specific to methods sorting out the issues, the way to procedures and effectiveness.Chapter V is about the perfect mediation and conciliation System of civil pretrial procedure. Early pretrial procedure for dispute settlement functions to achieve the same effect reconciliation and mediation system plays a close relationship. In view of the Court Mediation drawbacks inherent in the system, transform of the court mediation should be made through the establishment of mediation before litigation, improve the settlement of litigation, develop the gradual development of the mediation commission, finally, make the court withdraw from the course of mediating. First of all, it should be clear that the implementation of mediation on the part of civil disputes lead to further improvement of the pretrial mediation. Second, it should improve our action settlement system, and make the elements and procedures for the settlement of litigation clear, Develop measures to encourage the parties to choose settlement. Finally, it should draw on the experience on the basis of extraterritorial to promote the development of industry, to improve the quality of commissioned mediation, commissioned mediation when the court to make more choices, establish the foundation for withdrawing from the course of mediating in the court.