Research On Civil Litigation Command

The private rights in civil disputes determines the court making the judgment with a neutral position in civil proceedings. However, if the proceedings are entirely controlled by the parties, it will be inevitable like litigation delay, injustice and so on, which will not only undermines judicial authority, but will results waste of judicial resources. Therefore, in order to ensure the efficient conduct of the proceedings and substantive justice, the court should be given the civil power to make appropriate disposition of various conditions arising in the course, which is called civil command. Now China is in transition. Some scholars have many false consciousness about civil command, and there is a "procedural error and the judge functions independently of the withdrawal" coexist in legislation. This paper analyzes the content of civil command, function of the basic theory and foreign legislative changes, and by taking the special circumstances of transition into account, it makes a number of recommendations to improve the system of civil command.By the method of combining theoretical analysis with comparison, this paper firstly introduces the basic theory of civil command and legislation changes about civil command of two legal representative countries; follows by analysis of the problems which exists in the system of civil command; at last makes a number of recommendations to improve the system of civil command. This paper is divided into four parts and more than thirty thousand words:The first part introduces the basic theory of civil command. This part introduces the meaning of civil command firstly, then introduces the scholars differences opinion about definition of civil command, and forwards the author's view on the basis of extension of civil command of scholar. Meanwhile, this paper also gives a brief introduction to exercise subject and manner of civil command. At last, this section discusses the function of civil command.The second part discusses legislation change and comment of civil litigation command. This section introduces the legislation change of the France, Germany, Britain, the United States on civil command, and the historical background and significance of change. In addition, from the foreign legislative changes we know it is a trend of two legal systems to strengthen the command of the court's civil command. But the strengthen of civil command does not mean the return of powers doctrine, so China in transition should improve the civil command in civil courts. The third part introduces China civil command system macro aspect and analyzes the status of the specific operation. Firstly, the author introduces the result of the coexistence of "program independent errors the withdrawal authority with the judges" from macro aspect. Secondly, the author analyzes the status of civil command specific operation from those four aspects, including the pleading of exercise interpretation right, pleading, the protection of evidence collection by the parties, the right to dissent.The fourth part analyzes the meaning of improving the system of civil litigation command in China transition and gives some specific recommendations to improve it. Firstly, it is an urgent need to improve the civil command in China, because it is very to be accepted by Chinese to justify procedural justice in the transition period in China, and Chinese legal quality is still low. Secondly, the breadth implement of civil command makes vulnerability in the provisions of law, so the author gives the basic principles which should be followed by the exercise of civil command. Finally, the author analyzes the status of civil command specific operation from those four aspects, including the pleading of exercise interpretation right, pleading, the protection of evidence collection by the parties, the right to dissent.