The Research Of The System Of Losing Effect Of Defence In Civil Procedure

In America and Europe, and some other countries, "loss of the right to reply system" is aimed at restricting and urging the litigants to submit their replies within a statutory period; this system can impel the litigants to attack and defend based on their advocates, and also allow the early completion of the Issue sorting tasks to be achieved. "loss of the right to reply system" is a very important component of the litigation system in these countries. Currently, there is no such regulations concerning this system in our country. No items in our laws announced the legal consequences in the condition that the defendant will not submit his/her reply. While, in the legal practices, defendants are used to avoid submitting their replies intentionally; the reason is that they are always trying to obtain a favorable action status through some so-called litigation "skills" such as "sudden odd win". This kind of misbehavior will undoubtedly hinder the smooth functioning of the judicial proceedings; the trial efficiency will be impaired, the judicial resources will be wasted, the burden for litigation on the corresponding litigant will unavoidably be increased. It is against the principle "equal litigation rights", if continued, miscarriage of justice will come out. "Loss of the right to reply system"is a very important part to complete the defence system in civil pretrial procedure. It is quite necessary to make an academic study on this system, so as to enhance the related theoretical research and perfect our own litigation system. While, this kind of study must be based on our own legal practices and judicial habits; and at the same time, all kinds of practices aimed at establishing this system should also be started. This paper consists of five parts .The first part tries to summery the content and action mechanism of the defense loss power system.Firstly, defining the meaning of the civil defence invalidity,and puts forward the right of defense for lost to rejoin the premise, and the applicable situation losing rights, and legal consequences analyse. Secondly, analyzes the value orientation of defense, losing rights for the defense establishment of loss power system which provides theoretical basis to rejoin loss power system and enrich the connotation.The second part analyzes two major law countries and district rejoin loss power system from comparative perspective.Through the Anglo-American law such as Britain, America and the continental law system in Japan, Germany and China under the legislation, the investigation of the Taiwan area, the author sums up their commonness and individuality from the same and different places unearthed some common rules for establish China's defense,losing rights system to offer reference for legislation or some inspiration.The third part proposed the present situation of our country's rejoin loss power system , and then found there still exists in defense system legislative defects and lack of judicial practice.And revealing the appellant submitted civil lawsuit accused is not the prior condition of exercising the right of defence in our country's legislation; The defendant who donot rejoin is no corresponding loss power consequences. In judicial situation, the author lists the defendant reply of situation, and the current defense system in practice, and through analyzing the defect of its causes, and should establish suitable for our contry's defense loss power system.The fourth part tries to analyze to establish China's defense loss power system of the necessity and feasibility. First,our country should introduce rejoin loss power system for the question, then the debate, such as negative said, affirmation and cautious one introduced are analyzed, based on China's actual conditions and eventually determine our country is necessary to establish rejoin loss power system, and setting up the system also is justified, and it fits evidence loss right system; The lawsuit a program to provide security; the function meet program stability requirement. Then from establishing China's defense loss power system of internal and external environment, this paper discusses the demand Angle lost right system of establishing the feasibility of defense.The fifth part is the specific idea for establishment loss power system. First refines the specific content of losing rights to establish rejoin loss power system, including defense the time limit, mode and exceptions. Secondly proposes supporting institution to establish rejoin loss power system to ultimately ensure lawsuit smooth, which includ: setting up the missing evidence system, clarifying the judge cohabitancy system, establishing the summary judgment system and establishing not litigation-responding judgment system.