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On The Reform Of China's Preparatory Procedure In Civil Litigation

Posted on:2002-03-25Degree:MasterType:Thesis
Country:ChinaCandidate:Q S ZhangFull Text:PDF
GTID:2156360032950426Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
As the preceding procedure of oral debate, the implication of preparatoryprocedure of civil litigation is far exceeding the term of "preparation". On the one hand,through the arrangement of issues and the collection of evidence, it can make the case due to be heard and ensure the debate between the litigants to be centralized and of having got enough information, it can make the litigants or the litigants and judge tohave a substantive dialogue and promote the cases to be resolved, in non-trial waysbefore the coming of oral debate, saving the cost of litigation. We can say that thepreparatory procedure is necessary for the fulfillments of the function of trial and thepurpose of litigation. It has become the major substance in civil procedure law to be modified in each country. In the present situation of China's judicial reform, trial stagehas been looked as the center again. With the function of court trial strengthening, theimportance of the pretrial procedure is increasing. On the prerequisite of looking thecourt trial stage as the center, how to reform China's preparatory procedure of civillitigation begin to be thought in both theoretical circle and judicial circle. Overall speaking, through the research of China's preparatory procedure of civil litigation, thistreatise is not aimed at giving a serial of concrete system, but trying to find a wholeidea for the reforming in a macro angle, that is, equalizing the function between judgeand litigants in the pretrial procedure. In the first part of this treatise, the author introduces the legislation and practice ofChina's preparatory procedure of civil litigation, pointing out the disadvantages of it.Then the author analyses the reforming idea produced in judicial practice circle and thetheoretical circle. Though this analysis, we can see that both of the practice circle andthe theoretical circle can not give a feasible way for the reform of China's preparatoryprocedure. It is urgent for us to find a new angle for the reform. We can not look out the feasible reform for China's civil litigation in China's legalculture background, because the research of civil litigation and experience in practiceare very poor. It is common knowledge that we must seek the angle of reform learningfrom the foreign experience in the reform of pretrial procedure. In the second part of this treatise, through the research of the refOrm in pretrialprocedure in the continental law system states and the Anglo-American law systemstates, the author concludes that the refOrms of pretrial procedure in these states are allaimed at equa1izing the function between the judge and litigants, The disadvantages ofChina's preparatory procedure of civil litigation definitely have direct connection withthe unequal function between the judge and litigants. So the author has the view thathow to equalizing the fUnction between the judge and litigants should be the angle ofreform in China's preparatory procedure of civil litigation.The author has chosen to equa1ize the function between the judge and litigants asthe angle of reform in preparatory PrOcedure of civil litigation, as a result, distributionof function should be explained. Ih the next part, the third part, the author mainly' ana1yses the forms of function of the judge and litigants and the diwtution of functionin preparaory procedure.The forth part of the treatise is to devise the general idea for the reform of China'spreparatory procedur of civil litigation. The center in reform of China's preParatOryprocedure of civil litigation is actually how to grasp the Process of distribution of thefunction between the judge and the litigants and their attamey The aUthor gives threemeasures for this, diITilnishing the judge's authority, setting uP the substantiveadversary system, strengthening the function of lawyers in preparatmp PrOCedUre.Then, in the fifth part, the author begin to think the perfction of concrete sy...
Keywords/Search Tags:Preparatory
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