A Study On Summary Judgement

Summary judgement means a final binding judgement as to substantive issues without the hearing of the court, it also means the procedure to make the judgement without the hearing. Originally, summary judgement had been deviced as a tool for the plaintiff which purpose was to prevent the defendent's"false pleading". The system of summary judgement can be traced to The Bills of Exchange Act of 1855 in England where it was primarilly used in the procedure of cheques and cashier's cheques. With the development of the practice, summary judgement began to be used by the defendant. Meanwhile, it has been used in the disputes of all kinds. If there is no genuine issue as to the material facts or the party has no hope of success, the plaintiff or defendant can apply the court for summary judgement. Now summary judgement has been used to filter out the disputes without facts issue in Anglo-American law family. Furthermore, it can facilitate the settlement, simplify the process of trial, ensure the parties of legal rights and prevent the abuse of rights of litigation. In essence, summary judgement should belong to summary procedure in the broad meaning ,which is even a chief form of summary procedure in Anglo-American law family. summary judgement efficiently embodies the ideas of using the resources of judicature reasonably and enhance the efficiency of litigation. Meanwhile, there are large number of disputes without facts issue in our civil litigation. Establishing the system of summary judgement not only can effectively smooth over the fault of the procedure for supversing and urging the celearance of debt and the summary procedure, but also increase the independence of pretrial procedure.This article comprises five parts, including preface, three chapters and conclusion.Chapter 1 primarily introduces the Origin, development and legislation of summary judgement. About the legislation, this article not only refers to the system of summary judgement in England, America and other countries and areas, but also compares the summary judgement before and after 1998 Rules of Civil Procedure coming into force in England.Chapter 2 is the vital part of the article, which is theoretical analysis of the system of summary judgement. Chapter 2 not only studies the definiton, nature and function of summary judgement, but also clarifies the basic theory of summary judgement from several aspects, including summary judgement's purpose andjurisprudential basis, the terms of summary judgement, responsibility and standard of proof, the beginning and development of the procedure of summary judgement, courts'power in the procedure of summary judgement.with relation to the reality, Chapter 3 concentrates on the necessity and realistic importance of establishing the procedure of summary judgement in our country, and puts forward some basic suggestions about the construction of the procedure of summary judgement .