On The Trial By Default System

As a very important institution in civil procedure, different countries, including our country, have built different rules on the trial by default system in different periods. However, the trial by default system of our country has defections in legislation and very simple articles, which result in poor operation in practice. For this reason, it is necessary to reform the trial by default system of our country. Through probing the trial by default system of some countries and region, the article analyzes modern civil litigation notions on which the trial by default system is based. On these bases, the article puts forward some concrete ways for reforming and perfecting the trial by default system of our country. In the end, the article discusses the system of civil withdrawing charges related to the trial by default system, seeking more overall and enough defenses to the procedural rights of the defendant.The article divides into six parts.Part one: Introduction. The part analyzes the importance of the trial by default system and draws the outline of this article.Part two: Legislation study on the trial by default system. Through legislation study on the trial by default system of Germany, France, Japan, Taiwan, the United States, England and China, the article figures out the different characters of the trial by default system between representative countries and region and our country. These include: difference of the implication of "default"; difference of the subject of application; difference of the subject of institution; difference of mode of trial by default. These form solid conditions for analyzing modern civil litigation notions on which the trial by default system is based and reforming and perfecting the trial by default system of our country.Part three: Modern civil litigation notions and the trial by default system. The differences of the trial by default system between representative countries and region and our country are not only in system, but also in modern civil litigation notions onwhich the trial by default system is based. Modern civil litigation notions are the bases for constructing civil litigation systems. The trial by default system should be based on modern civil litigation notions, for example, the adversary doctrine, the doctrine of equality, the doctrine of disposition, procedure justice.Part four: The innovation and perfection of the trial by default system of our country. This part first analyzes defections in system and misconceptions in theory. The defections in system include: defections in legislation, poor operation in practice and low litigation efficiency; violation of the principle of equality, the principle of disposition and procedure justice. The misconceptions in theory include: taking the trial by default system as a punishment means and misunderstanding its function; seeking the litigation notion of "absolute factuality"; extending of the scope of "misjudged case" in the system of investigating into misjudged cases. Then, the article puts forward some concrete ways for reforming and perfecting the trial by default system of our country: taking both the ex-prate debate judgment mode and the default judgment mode; putting forward ten pieces of suggestion in the design of concrete system.Part five: The system of civil withdrawing charges and the trial by default system. Only the trial by default system can't give enough defenses to the procedural rights of the defendant. So, the trial by default system should be connected with the system of civil withdrawing charges and the defendant should be entitled to the right of choosing procedures: On the date of oral debate, if the plaintiff is in default, the defendant may apply for default judgment to the court; in the meantime, the defendant may also be in default, and after some time, if two parties don't put forward an appointed date to continue the procedure, the court may take as non pros and the defendant can end an action. Part six: Conclusion. This part sums up the total structure and the...