Study On The Right Of Choice Of Civil Procedure

In the last years, with the in-depth of the reform of the civil adjudication method and the expansion of the theoretical research of civil action, the pri- nciple of procedure subjectivity and the problem being related to the pri- nciple of procedure subjectivity have been paid attention generally by the boundary of the science of law theory and judiciary reality .And the right of choice of civil procedure has become the topic of conversation which the current scholars are talking about more.From height of the overall situation of the resolving procedure of civil dispute, developping study on the right of choice of civil procedure is very significent to construct chinese multi- dimensional resolving procedure mechanism of civil dispute, promot the dispute party's procedure subject status, promot procedure justice reali- zation, enhances the procedure benefit and strengthen the social compati- bility of the resolving procedure mechanism of civil dispute.The main body of the paper includes four parts by following:The first part elaborates initially the basic legal theory of the right of choice of civil procedure. First the basic connotations of procedure, the legal proceeding, civil(law) procedure, right, procedure right and the right of choice of civil procedure and so on are limited. Next, discusses the nature of the right of choice of civil procedure. Finally, analyzes the significance of the right of choice of civil procedure. The second part proves the ground of establishing and lasting the right of choice of civil procedure in civil procedural law domain. The Trend of development of the multi-dimensional resolving procedure mechanism of civil dispute extremelly satisfies with the basic condition of realizing the right of choice of civil procedure. The principle of procedure participation implied in procedure justice should entrust the civil dispute parties with the more opportunities of procedure choice. Establishing the right of choice of civil procedure is the inevitable request of the procedure subject principle, which provides the solid safeguard of right for enriching the procedure subject principle. Now,that the chinese civil procedure system is turning towards adversary system transformation provides the external system environment for establishing and lasting the right of choice of civil proce- dure . That is to say,only in adversary system , the civil dispute parties can more fully realize and enjoyt with the right of choice of civil procedure.The third part systematically inspects the concrete manifestations of the right of choice of civil procedure in the resolving procedure of civil dispute of German and Japan from the comparative law angle . Both Germany and Japanese legislation of civil procedure provides the civil dispute parties with the multi-dimensional resolving procedure mechanism of civil dispute. In other words, outside civil action procedure, Germany and Japanese law also construct all kinds of Alternative Dispute Resolution . Inside civil action procedure, Germany and Japanese civil procedure also entrust the litigants with more the right of choice of civil procedure. Law permits to not only choose the branch of civil action procedure but also procedural matter. However, because of the differences of historical tradition,legal culture and judicial system and so on, the legislation of the right of choice of civil procedure has great differece .The forth part objectively describes the present legislation situation of the right of choice of civil procedure and comprehensively revelate the legislation flaw of it. In the civil procedural law domain of china ,both inside and outside civil action procedure, the civil dispute parties enjoy the right of choice of civil procedure in certain degree. But, the right of choice of civil procedure is still deficient. Therefore, in order to perfect the chinese legislation of the right of choice of civil procedure, in the legislation locali- zation of the right of choice of civil procedure, first step: The legal rule of"The litigant enjoys the right of choice of civil procedure"should been stipulated in the chapter----"litigant"of civil procedure'general rule but not in the chapter ---"basic principle of civil procedure". Second step: When conditions are ripe,the right of choice of procedure is stipulated in the chapter━━"Citizen's basic right and duty"of Constitution. When constru- cting concrete system of the right of choice of civil procedure, not only the right of choice of civil despute resolution procedure but also the right of choice of civil procedure in civil procedure should been perfected.