On The Civil Pretrial Procedure

The civil pretrial procedure is a very important step in civil procedure. Viewed on the developing tendency of the Western civil procedural law, the civil litigation procedural emphasis has shifted from on hearing to both hearing and pretrial procedure. As compared with foreign legislation in this aspect, there is no special and independent pretrial procedure in China' s civil procedural law, and theoretical study on this area is very late. Therefore, the thesis firstly study the basic problems of the civil pretrial procedure. Based on the following research methods, such as positive analysis and comparative analysis, etc, the thesis aims at making further study on the procedure considering China' s condition and learning some useful experience from the Western, so as to put forward relevant legal reflection on the establishment of system of China' s civil pretrial procedure. This thesis consists of four parts as follows.The first part: The author firstly analyses some typical concepts of the civil pretrial procedure, and points out their defects, then demonstrates the author' s understanding of the concept and characteristics. Secondly, the author makes further study on two main values and four main functions of the civil pretrial procedure. Lastly, the author distinguishes the civil pretrial procedure from trial procedure in order to have a better understanding of the connotation of the civil pretrial procedure.The second part: the author reviewed and made a comment on China' s civil pretrial procedure from the aspects of its legislation and practice. Legislatively, the author divides China' s civil pretrial procedure into four stages, and introduces every stage respectively, especially comments on theperfection of the following stage made by the previous one, by which the author emphasizes making a comment on the judical interpretation of the Supreme people' s court in December, 2001. Practically, the author, in the same way, divides it into four stages, and introduces them respectively, especially comments on the perfection of the following stage made by the previous one.The third part: Through making an introduction and comment between the Anglo-American judicial system and the continental judicial system, the author find their differences in the civil pretrial procedure. Then, the author analyses the main causes of their differences between the two judicial systems, including litigation models, law tradition and judge role, and specific problems. Lastly, the author makes a conclusion and simply analyses four common features of the civil pretrial procedure between them.The fourth part: The author firstly analyses the factors of affecting the establishment of China' s civil pretrial procedure, mainly analyses three disadvantageous factors including strong litigation model, the tradition of stressing content and ignoring procedure, and the disposition of judges and lawers. Secondly the author gives four basic principles of China' s civil pretrial procedure including the fair principle, the economic principle, the combining party leading and court guiding principle, and the absorbing foreign experience and adapting China' s condition principle. Lastly, the author designes China' s pretrial procedure as pleading stage, discovery procedure and pretrial meeting, and advocates the establishment and perfection of five relevant systems to ensure it' s well-operating.