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Litigation Surprise And Its Legal Control

Posted on:2004-06-11Degree:MasterType:Thesis
Country:ChinaCandidate:Y H YangFull Text:PDF
GTID:2156360092999293Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
The construction and reform of the civil litigation institution is a delicate and complicated systematic project. A proper understanding of the value system of the civil litigation institution can be achieved only by an all-round analysis, which in turn can bring about a substantial theoretical system. We have noticed that, due to the wide acceptance of litigation impartiality and litigation benefit, procedure pattern, evidence system and civil action level system have become hot issues in legal system reform. But the analysis and study of Litigation Surprise has been far from sufficient. It has been touched, but not systematically elucidated, in the current domestic literature concerning civil litigation. We hold that, the inchoative discussion on Litigation Surprise in the 1980s in Taiwan has provided important theoretical guidance and practical reference for the reform of the current civil litigation institution, especially the current court trial system.Litigation Surprise, which theoretically violates the fundamental legal principle of modern civil litigation, runs counter to litigation impartiality and benefit. It goes against the realization of procedural justice and substantive justice, against the acknowledgement, respect and guarantee of the litigation's self-esteem and independent volition. It in practice has a negative impact on the society and is the cause of litigation retardation, cost increase. It makes the litigation agent unable to take full advantage of its offence and defense; unable to know the reasoning procedure of the court. It deprives the litigation agent of its right to voice it's opinion to the law application, to participate in the judgment, to exert any influence on the formation of the judgment, and to supervise and restrict the operation of the judge. Meanwhile it also makes it impossible to prevent or control the abuse of litigation action or fraud in litigation. It may also cause the judge's abuse of jurisdiction and ignorance of litigation agent's status as procedural main body. Litigation Surprise increases the unexpectedness of lawapplication and evidence verification, and reduces the authority of the judgment of the court. Hence the judgment is hard to be carried out.Based on a main-body classification, this article, written in a period of civil litigation reform, attempts to make a macro and theoretical analysis of Litigation Surprise and it's legal control from a civil perspective; it consequently tries to systematically elucidate, through a comparative study of the foreign litigation systems, the prevention and control of Litigation Surprise by means of establishing an efficient institution; and finally, it argues to effectively control Litigation Surprise via the establishment of a legal institution system, and provides some concrete improvement and system patterns.This article is divided into three parts:Introduction: This part provides a brief account of the social background and current study of Litigation Surprise, and introduces the theoretical and practical significance of the discussion. It presents the theme of this article, i.e. discussing the Litigation Surprise via a main-body classification, namely, Surprise from the litigation agent and from the court.The main body of this article can be divided into five parts, just as the following:Part â…  : Based on the main-body classification, we make a systematic analysis of the concept of the two kinds of Litigation Surprise, its legal components, actual display, its cause, and its impact on the whole litigation institution, thus provide a clear picture of Litigation Surprise, making a preparation for further discussion.Part â…¡: we make a systematic analysis of the cause of the two kinds of Litigation Surprise.Partâ…¢: This part makes an analysis of how to exert a legal control over Litigation Surprise from the perspective of legal principles. Viewing from procedural impartiality, procedural economy, and procedural stability, we discuss the necessity, rationality, and feasibility of the le...
Keywords/Search Tags:Litigation Surprise, Legal Control
PDF Full Text Request
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