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Research On The Procedure Diversion Of Civil Cases

Posted on:2020-07-12Degree:DoctorType:Dissertation
Country:ChinaCandidate:C L ShiFull Text:PDF
GTID:1486305741464854Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
The world-wide civil case procedure divergence originated from the new round of justice initiated by the United Kingdom,the United States,Germany,Japan and other countries to deal with the civil judicial crisis characterized by the growing tension between judicial needs and limited judicial resources.The main countermeasure for reform is to match the appropriate procedures for different civil cases.For China,since the reform and opening up,the number of courts receiving cases has increased year by year,especially in civil cases,which is not only large in volume but also fast in growth.Under the influence of the current round of reform of the judicial system,the predicament of judicial caseload has further intensified,and it has become a shackle that restricts the smooth development of civil trial work.The unbalanced and mismatched relationship between the number of cases and the number of judges handling the case has prompted the reforms of China's civil justice system to be carried out around the legitimate protection of the legitimate rights and interests of the parties with limited judicial resources.The research in this paper is centered on how to optimize the allocation of procedural resources in our country,divert different types of civil cases to the best processing procedures,and to make civil cases timely and effectively resolved under the reasonable operation of the procedures.In addition to the introduction and conclusion,the main body of this article is divided into five chapters.The first chapter:The basic principle of the diversion of civil case procedures.The scope of research on the proposition of the diversion of civil cases needs to be defined from the two elements of "civil case" and "diversion procedure".Limiting the discussion to civil disputes that are brought to court and meet the conditions for acceptance are to correspond to the "case" in the contradiction between "judicial caseload".From the perspective of a dispute resolution procedure that can directly play a role in the resolution of civil cases,the specific procedures for diverting civil cases mainly include judicial ADR,non-litigation procedures(mainly supervision procedures)and summary procedures(including small claims procedures).The distribution of civil cases in the entire dispute resolution system has a deep legal basis,such as procedural system theory,distribution justice,responsive judicial theory,proximity to justice and proximity justice theory,procedural choice theory,procedural type theory,cost equivalence theory,etc.The matching of different processing procedures for different civil cases is also based on factors such as alleviating the burden on the court,improving judicial efficiency,and optimizing the allocation of judicial resources.The second chapter:The basic structure of the diversion of civil case procedures.The diversion of civil case procedures is a systematic project involving many aspects such as the main body of the diversion,principles,standards,methods,and processes.Specifically,the diversion of civil case procedures is carried out by judges,parties involved,and lawyers' assistance;the process of diversion must follow the strict implementation of the basic law of civil procedures,fully protect the legitimate rights and interests of the parties,implement intensive treatment,and limit the principle of"secondary diversion".The diversion standards in national legislation and judicial practice mainly depend on the type of case,the subject matter of the case,and the difficulty of the case;the current countries mainly adopt the combination of "case assisted system intelligent diversion+specialized agency or personnel designated diversion".The specific diversion process is roughly a case in which the ADR is diverted into the judicial process before the case is filed.After the case is filed,the case of the ordinary trial procedure is diverted by the rapid trial procedure.The third chapter:The world-wide civil case procedure diversion and practice.In response to the civil justice crisis,the United Kingdom,the United States,Germany,Japan and other countries have initiated a new round of judicial reform since the 1990s to ease the pressure on cases,prevent the delay of litigation,and simplify the proceedings.The process of diversion of the procedures involved in the judicial reform of the four national affairs has its own characteristics.The more prominent ones are the emphasis on case management,the introduction of small-scale litigation procedures,and the court's moderate intervention in ADR.The four countries almost all adjusted,optimized or reset the civil case handling procedures in a similar social context,and basically formed a set of civil case procedures diversion system that is simple,flexible,diverse,well-configured and effective.Investigating the reform practice of the diversion of foreign civil case procedures can bring some enlightenment to China's current judicial caseload.For example,program diversification is the premise of program diversion,case management is the guarantee of program diversion,and program diversion should be layered in a"funnel" way.The fourth chapter:The reform practice of the diversion of civil cases in China.From the perspective of historical development,China's civil procedure procedure diversion reform started earlier.Based on the existing normative texts and local practices,it can be traced back to the source.It can be used to find out how to manage the program in different ways in China.And the origin and development of different ways of diversion.Although China's civil case procedure diversion mechanism and measures are constantly improving,the ways and methods still have great limitations.From the perspective of case management,the program diversion mechanism has the following defects:the classification of the diversion procedure is not comprehensive,the operation and management of the diversion mechanism is not scientific and precise,the convergence of the diversion procedure is unreasonable,and the diversion result is seriously unbalanced;from the perspective of program operation,different diversion procedures also face different dilemmas,some of which are institutional,some are technical,and some are conceptual.The fifth chapter:The optimization of the path of the diversion of civil cases in China.From the investigation of the current legislation and the operation of the practice,we can find that there are spaces for further optimization in the system design and judicial operation of the civil case procedure diversion mechanism.To solve the above dilemma,the first task is to improve the diversion management mechanism of civil case procedures,including constructing a diversified program diversion mechanism,formulating a unified procedure diversion guidance rule,and expanding the program to divert participants.At the same time,it is necessary to transform the specific diversion procedures from the micro level to ensure that the cases can be properly resolved after entering the corresponding procedures.In addition to internal reforms and improvements,it is also necessary to strengthen the external safeguard mechanism.The measures directly related to the process diversion mainly include optimizing the allocation of trial power,promoting the flat management of the court,and accelerating the informationization of the court.
Keywords/Search Tags:Civil Cases, Judicial Caseload, Diversion Procedures, Case Management, Program Operation
PDF Full Text Request
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