On Re-structure Of Pretrial Procedure In Civil Action

Pretrial procedure in civil action means the collection of a seriesof judicial activities and related civil procedure rules involved in theprocess from the file of the case to the date of trial. Pretrial procedureis not only the foundation of hearing, but also the guaranty of efficientlyfair adjudication. Reference to foreign legislation on civil procedure andjudicial practice, pretrial procedure is on one hand separate from the trialprocess, while closely related to the trial process on the other hand.Pretrial procedure is also significant in sense of litigation that isdifferent from the procedural function of trial. Although there are someexpress rules about pretrial procedure in civil procedure law of China,pretrial procedure still has not such functions of collection and discoveryof evidence, notion of issues, promotion of reconciliation as what it hasin foreign civil litigation. Both legislation and judicial practice in ourcounty fail to bring the above-mentioned functions of pretrial procedureinto full play, which may possibly results in formalization of hearing,the prolongation of trial, even a surprise "new evidences attack", so thatthe court trial is unfair and not efficient. Therefore, it is necessaryto make a legal reformation on present pretrial procedure. As an experiencedjudge, the writer puts forward some suggestions on restructure of pretrialprocedure based on judicial practice and legal theories, and also expectsthat this thesis could be helpful for theoretical research and legalpractice. 1This paper is composed of four parts that elaborate pretrial procedurein our country from different point of views. Part one focuses on the reviewof the present legislation on pretrial procedure in China. It analyses thepresent situation of both legislation and judicial practice about pretrialprocedure in our country, and also makes a comment on defaults existingin this procedure. In view of writer, there is no systematic pleading anddefence process in the present pretrial procedure, and litigation partiescan hardly have a chance to get effective discovery of evidence and clearnotion of issues. The relationship between investigation conducted by courtand burden of proof born by involved partied is also misoriented. Collectionof evidence and investigation conducted by judge during pretrial procedurewill lead the judge to have a pre-judgement even before the hearing of thecase, which may directly influence the fairness and effectiveness ofadjudication. Part two makes a comparative study between pretrial procedures in Chinaand that in foreign countries. It mainly compares the pretrial proceduresin America with that in Germany. Part three discusses the theoretical basis of pretrial procedure andelaborates its inner and outer worthiness. Part four illustrates the necessity and significance of restructureof pretrial procedure in our country. Furthermore, the writer puts forwardher suggestion on the structure of pretrial procedure and the reformationof pretrial procedure, including separate distribution of cases,establishment of pretrial judge and burden of proof system, establishmentof characterized discovery process and pretrial hearing system. With the development of China's economy, it is necessary to ensure theprocedural and substantial legal justice and guaranty the judicialefficiency, which requires the restructure of present pretrial procedureon the basis of Evidence Rules of Civil Action issued by Supreme Court ofP.R.C...