Studies On The Civil Procedural Disposal Rights

Nowadays both the common law nations which take the adversary model and the civil law nations which take the inquisitional model are take the disposed rights as an important principle with the transformation from focus on power to focus on right, more and more scholar has begin to explore many subjects that benefit to the nation's litigant practice. So, studying the problems of the litigant disposal rights systematically has significance both to the development of litigant theory study and to the reformation of civil trail form. This thesis is made up of three parts. Firstly, the thesis analyzed the disposal rights from three angles, that is, the angle from restricting the judicial power to see the disposal rights'object, using dialectics to reveal the disposal rights and judicial powers'relationship; the angle from protecting the human rights to see the disposal rights'function. The disposal rights embody the human rights'protection everywhere, especially the prosecute judicial power, the equal power, and the free power; the angle from releasing the suit rights to see the disposal rights value. Parties take through disposing on their owe substantive rights and procedural rights to realize the civil suit rights'substantive meaning and procedural meaning. Secondly, the thesis took the historical analysis ways to introduce Chinese litigant disposal rights'history and present. Compare Chinese disposal rights'history, with its present, we found that the 1991's Civil Procedural Law has revised much from the 1982's, and the parties disposal right restrictions has loosen much, but there are not enough both in legislation and in practice. Finally, by means of analyzing German and France disposal right's development, the thesis pointed out that our nations'disposal right's direction. On the one hand, we should restrict properly on the disposal right of the human affairs procedure, the welfare procedure, and the non-litigant procedure. On the other hand, we should revise the civil procedural law in order to reduce the intervention on parties disposal right from the judge, that means to take the following two points. First, rebuild the system to eliminate existing intervention, such as the start of litigation, the reformation of litigant request, the adjustment of re-trail procedures and withdrawing charges system. Second, introduce contract element into civil procedural law, and make it embody the esteem on procedural parties'principle.