Study On The Trial Mode Of The Preconditions Of The Judgment

Protecting the right of action is the basic requirement of modern civil judicial reform.In response to the fourth plenary session of the party's 18 put forward the objective to guarantee the judicial reform his right to appeal on April 1,2015,the central comprehensively deepen reform leading group for the 11 th meeting examined and approved the "about the opinions of the people's court filing system reform",further clear the direction of the court filing registration system reform in our country.In the same year,the Supreme Court amended the interpretation on the application of the civil procedure law of the People's Republic of China,and explicitly amended the case-filing examination system into the case-filing registration system.However,the current so-called case registration system has not changed the original case filing method under the case filing examination system,but still places the litigation requirements and the prosecution conditions together in the pre-examination of the case filing court,failing to effectively realize the system of case filing registration system to protect the right to file.Therefore,this paper will take the deepening reform of the case registration system as the background,proposes to distinguish the litigation requirements and the prosecution conditions in the legislation,and then by clarifying the trial methods of different litigation requirements,intends to build a progressive local trial theory of litigation requirements.The main text of this article is divided into six chapters,a total of about 150,000 words.The specific contents are as follows:Chapter one : the reform of case-filing registration system and the distinction of procedural requirements.The main purpose of the case registration system is to lower the threshold of prosecution and provide the necessary procedural protection for the parties.However,scholars have different opinions on the registration system.Some scholars believe that although the current case acceptance system is called "case registration system",the filing conditions are not reduced,so the original filing system has not been substantially changed.Some scholars believe that in the years since the implementation of the case-filing registration system,it has achieved the remarkable effect of "a case will be established" in the case-filing acceptance stage,which has completely changed the situation of not receiving the complaint and not issuing the ruling,but still admits that the reform of the case-filing registration system is not complete.Through the comparative analysis with the filing system of the civil law system,it can be found that the so-called filing registration system in China is not worthy of the name,from the legislative point of view,the prosecution conditions are not substantially reduced,and the parties' right of filing is not guaranteed.In view of the different attributes of the elements of prosecution and the elements of litigation,and the different functions of the prosecution stage and the trial stage,the focus of the current reform of China's filing system should be on the strict distinction between the elements of prosecution and the elements of litigation,respectively placed in different stages and given different procedural guarantees.If a party submits a statement of complaint in conformity with the formal requirements,the case-making court shall register the case and the action shall be initiated accordingly.Chapter two: the theory of local examination of litigation elements.After distinguishing the elements of litigation from the conditions of prosecution,it is necessary to improve the way of hearing the elements of litigation.From the perspective of the litigation structure in the stage of Roman law,the litigation elements have the predominance and independence.However,with the introduction of the litigation objectives such as the stability of the procedure and the efficiency of the litigation,the status of the litigation elements began to decline,and they no longer serve as a prerequisite for the trial of the case,but evolved into a prerequisite for the judgment of the case.In addition to the dynamic nature of the elements of litigation and the private interest of some elements of litigation,it is a historical choice to put them in the trial stage of the case and endue the right to debate.According to the theory of trial of the elements of litigation in the civil law system,the elements of litigation are usually placed in the trial stage and are tried in a compound parallel structure with the elements of this case.However,under the circumstance that the trial pressure is increasing and the background of rule of law is not perfect,it is very likely that the prosecution will be difficult to change into the trial by placing all the elements of the lawsuit in the trial stage after filing the case.In order to reduce the burden of the court,the feasible reform measure is to reclassify the elements of litigation.That is,according to the type and nature of the litigation requirements,and the degree of the court's power to intervene in the size of the strength of the court,the court and the parties to determine the responsibility of the distribution of the scope.Specifically,the competent court,the parties,the ability and the ability of litigation and other public welfare litigation requirement for a strong,easy to judge to case filing chamber for review,and closely linked to the rest and the real strong,private interest litigation elements,such as the interest of any jurisdiction,the parties,the eligibility,v.,after repeated litigation matters should be placed on trial court trial stage,to ensure that the application of the parties to participate and the right to debate,and give the sufficient means of relief.Chapter three:adjudication method of jurisdiction.At present,China adopts a dual review structure for jurisdiction,that is,after the review before the case filing court,the trial court can also conduct the review after the case filing court,which leads to the complexity and conflict of the jurisdiction review,and makes the jurisdiction system of responding to the lawsuit that respects the autonomy of the parties be shelved due to the premature review of the court's functions and powers.In fact,jurisdiction can be divided into exclusive jurisdiction and arbitrary jurisdiction according to the degree of compliance required by the parties.For the reform of the jurisdiction review structure,no matter the single pre-review and the latter post-review cannot take into account all the jurisdiction matters.A better solution is to maintain the existing double-review structure,but clearly distinguish the review matters in different stages.Specifically,the exclusive jurisdiction(including the level jurisdiction)is established for the purpose of correct and prompt judgment.It has a strong public welfare nature,and the disposition power of the parties is limited.Therefore,it is appropriate for the court to investigate the case according to its functions and powers in the prosecution stage.And arbitrary jurisdiction is mainly for the purpose of seeking the convenience and fairness of the parties set up,with a strong private interest,can establish consensual jurisdiction or respond to the jurisdiction,so it is more appropriate to put in the trial stage to implement the doctrine of debate,the parties are responsible for presenting facts,evidence,and allow them to make up for the self-admission or self-admission to restrain the court.Where the facts of the cause of jurisdiction are concurred with the facts of the cause of the case,the court which is claimed by the plaintiff and proved by prima facie evidence shall be the court of jurisdiction.For a case lacking jurisdiction,the court shall transfer the case on the basis of soliciting the opinions of the parties.And a final judgment rendered by negligence of jurisdiction shall give the parties an opportunity to appeal.Chapter four: proper hearing methods of the parties.In the civil procedure law of China,"the plaintiff has a direct interest in the case" is examined at the stage of prosecution,which leads to the consequence of the double higher order of prosecution.In practice,according to the understanding of "the plaintiff has a direct interest in the case",if it is regarded as "the plaintiff's eligibility",because the eligibility of the parties in the civil law countries is the requirements of litigation,the first judgment in the prosecution stage leads to a higher level of prosecution standards;To link the "direct interested party" with the "entity right obligor" is to elevate the judgment standard of the parties to the height of the requirements of the case,forming the second higher order.As an element of litigation right,the suitability of the parties is closely related to the entity problem,so there is a dispute between the requirements of the lawsuit and the requirements of the case,but with the expansion of the types of litigation and the increase of social disputes,the procedural nature of the suitability of the parties has become increasingly prominent.Therefore,it is better to include it into the scope of the elements of litigation to explain the system of litigation responsibility.After the case registration system is further improved,as long as the party recorded in the complaint is the clear original defendant,the judgment on whether the party is suitable should be placed in the litigation trial procedure,and the case elements according to the argumentation of the trial.However,when the request of this case is obviously untenable,it may discard the hearing of the eligible party that has no effect on the world,and make a judgment to dismiss the claim directly.Chapter five: adjudication of the interests of an action.China's civil legislation does not clearly define the interests of litigation,but in judicial practice,it is generally used as a condition for prosecution in the filing stage of the review,which leads to the infringement of the right of litigation,repeated trial and other issues.The interest of litigation is in the middle zone between procedural law and substantive law,just like the requirements of eligibility of the parties,in the civil law countries and regions,there is a dispute between the requirements of this case and the requirements of litigation due to the differences in the doctrine of the right of action.On the basis of the essential nature of the interest and the function of the system,it is more appropriate to attribute it to the category of the elements of litigation concerning the legality of litigation.After deepening the reform of China's case filing system,the interest requirements of litigation as a matter of power investigation should be placed in the court session for trial by the court according to the debate doctrine.This should be clear at the same time,appeal interests as the premise of the judgment to the case,should be before the verdict of the case to be clear,but based on its own with the function of the filter not legal proceeding,for the request to the case without a reason but v.of interests has no it is not clear,the court can be directly to dismiss the lawsuit request.The court of appeal should reject the case with a ruling and give the parties the opportunity to appeal.Chapter six: trial methods of repeated litigation.The double prosecution originates from the non bis in idem principle and together with the res judicata regulates the double judgment of the same dispute.In 2015,the interpretation of the civil litigation law of China for the first time explicitly takes the repeated litigation as the object of rules,and clearly defines the criteria for judging the repeated litigation,which makes up for the lack of the principle of prohibiting the repeated litigation in China's legislation.However,it is not clear in our country that under what circumstances it belongs to the same case,and it does not distinguish the validity scope of the dual system and the settled case.In addition,the identification of the object of action involved in the repeated litigation is too hasty to place it in the unilateral review of the case filing court.As a passive element of litigation,the German law has been used as an obstacle to litigation,which can be tried only after the parties' defense.However,in fact,repeated litigation is not only related to the procedural interests of the defendant,but also related to the rational allocation of judicial resources,so it has a strong public welfare.Even if the parties do not defend against it,the court should carry out functional investigation and exploration at any stage of the litigation.However,authority exploration does not mean the exclusion of the parties to whether it is a repeat of the claim and evidence obligations.When the existence of such a negative element of litigation cannot be determined,the party claiming the existence of the negative fact(usually the defendant)still bears the burden of proof.