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A Study On The Right Of Choice Of Civil Procedure In China

Posted on:2007-11-05Degree:MasterType:Thesis
Country:ChinaCandidate:Y Z ZhangFull Text:PDF
GTID:2166360212458670Subject:Procedural Law
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Freedom means choice. Procedural freedom whose meaning lies in making the procedural subject idea to be respected and making sure the procedural subject be the procedural entity, is one for procedural subject. Under the condition, that there exits more than two kinds of procedural system with equal function, the right of choice of civil procedure is a fundamental civil procedural right generally recognized by global legislation that is designed to ensure the parties balance between truth discovery and boosting litigation so as to meet the parties' personalized interest on behalf of them. Nowadays, academic cycle has not established authoritative definition for it, generally there being broad and narrow comprehension for it. Broad meaning refers to the right that parties enjoyed to choose dispute settlement approach, relevant procedure and events by themselves in terms of law. In China, it primarily means the right to choose mediation arbitration or litigation as well as the one to choose the related procedure and apply independently. Narrow meaning refers to the right that parties enjoyed to choose procedural and related events as they wished. In strict sense it should be called the right of choice of civil litigation procedure. In this paper, the right of choice of civil procedure is primarily discussed and researched.As a civil procedural right enjoyed by the parties, the right of choice of civil procedure can compensate for parties' human right and property right, which makes the parties' procedural subjectivity substantially. Observing from judicial idea, this system embodies modern judicial idea whose core is fairness, high efficiency. Chinese laws rule out regulation on the right of choice of procedural right, however, there are many defects in legislation and justification by the reason that parties' litigation subjectivity has not been fully recognized which primarily indicates too small choice space, imperfect alternate procedure design and scarce corresponding procedural insurance system. Getting started from the fundamental theoretical problems, this paper try to overview the status quo of Chinese legislation and justification of the right of choice of civil procedure, relevant overseas regulations, find out domestic legislation defects and their source, and put forward some detailed reform idea so as to improve the right of choice of civil procedure in China.Taking the overall condition into consideration, this paper researches the right of choice of civil procedure in China in four parts.
Keywords/Search Tags:The right of choice of procedure, Legal principle, Practical value, Improvement
PDF Full Text Request
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