The Research On Issue Arrangement In Civil Procedure:Fundamental Theory,Judicial Practice And Domestic Construction

Issues are the logical starting point for the parties to initiate a civil procedure and the judges to conduct a trial procedure,therefore,issue arrangement has a fundamental importance for civil procedure.At the legislative level,China has not clearly defined the concept of issue arrangement,not to mention the construction of an issue arrangement system and the implementation of specific measures.At the judicial level,quite a few courts in China have carried out lots of practices,however,due to the lack of legislation,there are also problems such as the existence of different standards and regulations.Moreover,the current relevant theoretical research on the issue arrangement is not deep enough.This paper takes the basic theory of issue arrangement as its logical starting point,compares and explores the historical origins and current development of issue arrangement overseas,sorts out relevant legislation and practices at home,and proposes concrete suggestion for the construction of issue arrangement mechanism in China.The first chapter discusses the fundamental theories of issue arrangement in civil procedure,focusing on its basic concepts,key components,attributes and characteristics,system structure,value and functions.First of all,through the explanation of its literal meaning,the basic concepts of issue arrangement is preliminarily presented,emphasizing its three attributes,i.e.issues are disagreement between two parties;issues must possess some significance;issues must take place between two parties.The meaning of issue arrangement is further explored by discussing its key components such as time and space,subjects,objects,methods and results.It is necessary to pay attention to the fact that though issues arise between two parties,the subjects of issue arrangement also include judges and other participants in the procedure.The attributes of issues determine the characteristics of issue arrangement which include a normative system,diversified subjects and dynamic results.The specific meaning of issue arrangement is clarified through the comparison with relevant concepts such as pre-trial procedures,centralized judgement,protocols of issue simplification,and evidence exchange.Secondly,issue arrangement system is divided into a core system consisting of key components and a supporting system consisting of other auxiliary mechanisms which mainly include the mechanism of evidence investigation and collection,the system of the participation of judges' authority and losing-right system.Finally,from a general aspect,the institutional value of issue arrangement is illustrated using the dual value theory of justice and efficiency,and from a special aspect,the institutional functions of the issue arrangement are presented as the direct function,the basic function and the procedural function.The second chapter focuses on the development of issue arrangement in the Civil Law system and the Common Law system,and examines the institutional origin and development process of issue arrangement from the perspective of comparative law.Issue arrangement in the two major law systems originates from the macro-background of free economy under which two parties asks for certain substantive rights to participate in civil proceedings.Under the influence of different litigation cultures,the jury system of the Common Law system adopts a two-stage judgement mode which consists of pre-trial procedures and court trial procedures.However,due to the policy of non-interference on the parties,issue arrangement often leads to serious delays and stasis under mask of normativeness and stability.By contrast,the Civil Law system emphasizes substantive justice.Under the principle of providing evidence in a timely manner,issue arrangement is characterized by non-institutionalization,non-normalization,and relatively strong instability.Later in development,issue arrangement in the United Kingdom and the United States appears in pleadings,evidence discovery,case management conferences,pre-trial reconsideration or pre-trial conferences;the Civil Law system has formed a specialized core system of issue arrangement,for example,the preparatory oral arguments,the argument preparation procedures,and the written preparation procedures in Japan constitute the core system of issues arrangement.In terms of the design of supporting system,the Common Law system gives parties more rights in evidence investigation and collection and more severe punishments for losing of rights,and discourages the participation of judges' authority.By contrast,the Civil Law system has more restriction on the rights of parties to collect and investigate evidence,more moderate punishments for losing of rights,and more proactive judge interpretation.Of course,there are still certain differences in the establishment of specific systems in different countries and regions under the same law system,for example,the US pleading procedure generally only has the function of notification,while the UK pleading procedure has a substantive function of issue arrangement.Compared with Japan,the punishments for losing of rights in Germany and Taiwan are more severe.In general,in terms of issue arrangement,there is a certain degree of convergence and difference between the two major law systems and within each of them.The third chapter examines the historical origin and current status of legislation of issue arrangement in China on a macro level.Through the background and the purpose of the legislation of civil procedure law,as well as relevant systems in different periods in China since the modern times,the development process of issue arrangement in China,starting from the time when there was a lack of legislation to recent years during which some indirect rules appeared,is outlined.Focusing on the overall framework of the core system and the supporting system,this chapter extracts relevant concepts of issue arrangement as well as relevant rules and regulations from legal norms.At the legislative level,the issue arrangement in China has problems such as imperfect theories,obscure structures,lack of systems and weak functions.Without doubt,although China has not clearly defined issue arrangement in its legislation,the legislative idea has provided the possibility for the development of it.The fourth chapter focuses on the judicial practice in China,examines and analyzes the specific aspects of issue arrangement in judicial practice from a micro level.The investigation of practice revolves around the judicial practice of national courts as a whole,the sample courts,and some local courts that have certain typical significance.First of all,starting with the pre-trial procedures which are closely related to issue arrangement,it is considered that the current pre-trial procedures are considerably formalized and hollow.In general,issue arrangement in courts in China are difficult to be effectively carried out.Secondly,the sample courts set centralized judgement as its goal of reform,and both the judgement modes of typified and complex cases are based and centered on issue arrangement.Focusing on the key components of issue arrangement,this paper analyzes the issue arrangement of the sample courts,highlighting the functions of pre-trial conferences,evidence exchange,and pleading procedures in pilot reforms.Emphasizing the improvement and progress shown by the sample courts in terms of issue arrangement or beneficial advice on future reform of the courts in China carries certain progressive significance.Thirdly,focusing on the key components,problems arising from the process of issue arrangement in certain courts including sample courts will be discussed.To be more specific,there are more uncontrollable factors influencing the time and space of issue arrangement;judges takes the dominant role of issue arrangement and there are difficulties giving definition of judges.The status of parties is relatively low and other participants in the procedure has not participated enough.The definition of objects in judicial practice is obscure.In terms of methods and approaches,pre-trial issue arrangement which mainly consists of pre-trial conferences and evidence exchange is lack of order and on-court issue arrangement appears to be in disorder.Issue arrangement is not well conducted and its outcome is lack of stability.The reasons for the above problems can be roughly attributed to the alienation and weakening of the concept of procedural justice,the emptiness of the adversary system,the deviation of the purpose of issue arrangement,and the loss of centralized judgement.The fifth chapter aims to construct a theoretical system of issue arrangement in China based on the structural model of participating subjects in issue arrangement.Issue arrangement is a refinement of adversary system,requiring both parties to assume dominant positions in the procedure;issue arrangement is an abstract task thus requiring the participation of diverse subjects;the issue arrangement in non-substantive proceedings should be supplemented by a structural concept different from court trial procedure;the identity and uniformity of procedural interests and substantive interests between subjects provide possibility of interaction and cooperation between the subjects.Therefore,the structure of the relations among subjects in issue arrangement is different from other structural models of litigation such as adversary system,inquisitorial system and cooperative system(revision debate doctrine)in typical sense.The particularity of this structure requires that issue arrangement should be carried out under the guidance of "dominant-diversified" cooperative litigation concept.The legitimacy of the "dominant-diversified" cooperative litigation concept is based on certain theoretical foundation,cultural foundation and reality.Its internalized elements can be summarized as subject equality,subject freedom and good faith.Under the concept of the "dominant-diversified" cooperative litigation concept,parties,judges,and other participants in the procedure form a cooperative team within which each subject takes on different tasks to carry out issue arrangement.Specifically speaking,issue arrangement should adopt the mode which consists of the dominant role of parties,the supervision of judges and the assistance of other participants,i.e.a "dominant-diversified" cooperative relationship should be formed among subjects.Based on the "dominant-diversified" cooperative litigation concept,the sixth chapter puts forward a preliminary conception on the construction of China's issue arrangement system which should establish the principle of providing convenience for parties,the principle of completeness,the principle of comprehensiveness,the principle of distinction and the principle of time.Taking the current needs of judicial reform into consideration,the preventive,beneficial,constraining,internalizing,and educational functions of issue arrangement should be highlighted.In terms of the construction of the core system of issue arrangement,especially in the aspects of time and space,issue arrangement should be divided into two stages,i.e.pre-trial issue arrangement procedure and court trial issue arrangement,adhering to epistemology and the reality of judicial practice in China.At the same time,the former should focus more on systematic construction while the latter should be more normalized and standardized.From the perspective of judicial practice,it is advised to reconstruct and recategorize the objects as issues of facts,issues of norms and standards,and issues of procedures.In terms of methods and approaches,the systematization and diversification of the design should be taken into consideration,paying attention to the flexibility and the application of the methods at different stages.When it comes to the construction of the supporting system for issue arrangement,system of investigation and collection of evidence provided by parties serves a fundamental role in providing data and materials for issue arrangement,and the losing-right system guarantees the outcome of issue arrangement,thus there should be scientific awareness and practical designs for the above supporting system.