A Rustic Opinion On The Reform Of The Civil Pretrial Procedure In China

Civil pretrial procedure is the starting point of the whole civil litigation procedure, it not only affect the course and the result of the trial, but also embody the level of the knowledge and admitment to the value of the procedure, in addition, it guarantee the realize of the entity right. The function of the pretrial procedure lies in procedure justice guarantee and procedure benefit enhancing mainly.The pretrial mode can be devided into two kinds on the whole in the world of today: the pretrial mode of the function and power doctrine. The former include England. America and France. Its characterisics is the litigant plays a leading role in the pretrial while the judge is inactive comparatively. The latter include Germany and Japan. Its characteristics is the judge have greater power and control the course of the pretrial procedure. These two moods show a tendency of consistent through mutual absorbing resently.It is a typical function and powers doctrine mode in our country's pretrial. Its characteristics are :The subject is single; The implementation of the pretrial behavior is administrative; The pretrial is unindependent and the lawyer gets involved in pretrial is very limited. The author think that there exist constructive defects in the pretrial procedure: first is lack a independent pretrial judge and the pretrial action is confused with the trial and judgement action. The Second is the right of the litigant and the court is not clear. The third is lack eflective measures to digest a portion of the dispute. The forth is the absent of the pretrial exchange of the evidence system and the evidence invalid system.In consideration of the above, the author think that we should build a independent civil pretrial procedure depend on the "Certain Regulations About the Civil Action Evience" which worked out by the Supreme people's court as soon as possible, in order to promote the integrative change from the old civil procedure system. The measures concretely include: Establish a material pretrial procedure in legislation; Stregthen and add the function of the pretrial procedure and improve the participate level of the lawyer in the pretrial procedure.