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On The Reconstructing Of Civil Trial By Default In Our Country

Posted on:2008-10-21Degree:MasterType:Thesis
Country:ChinaCandidate:W WeiFull Text:PDF
GTID:2166360218460839Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
The civil trial by default is an important institution in civil procedure law. It had existed in Rome law. In its lengthy development process, the rules of trial by default are different in different countries and in different periods. Via its development, there are two modes of trial by default: default judgment mode and ex-prate debate judgment mode. Each of the two kinds of modes has merit and shortcoming in economy and justice of litigation. All countries have lay particular emphasis on adopting these two kinds of modes according the situation of the nation to make this system achieve balance between justice and economy and achieve balance between protecting the right of party and maintaining the stability of procedure. There are rules of trial by default in our country. But this system in our country has many blemishes. The provisions are too small to operate, and lead inequity and low efficiency of the practice of trial. Not completing the definition of "default" causes the meaning to stay on surface and not to point out the essence of "default". It doesn't respect the party's right of deposition and restrict applying the summary procedure unreasonably. And the procedure of relief is not integrity. Via the analysis of the history and value of trial by default and via the comparison and the research of this system in common law and in civil law, this article points out the blemish and its reason of our country's trial by default, and put forward the idiographic conceiving of reconstructing our trail by default.This article consists of six chapters:Chapter one: Introduction. This part states the function and meaning of the trail by default and the blemish of our trail by default, puts forward the writing way of this article.Chapter two: Summarization of trial by default. Sum up the definition of trial by default and compare the related concepts. Look back the history of trial by default. Analysis the justice value and economy value of this system.Chapter three: Comparison and research of trail by default. Introduce the trial by default in French, German, Japan, England and the U.S. and estimate and analysis the provisions. Via comparing the commonness and the difference of this system in civil law and in common law, ground the analysis of the blemish of our trial by default and reconstructing it.Chapter four: The condition and blemish of our trial by default. Introduce our current trial by default. Point out its blemish and deep reason based on the treatise before.Chapter five: Reconstructing the trial by default of our country. Based on our condition, put forward conceiving of reconstructing our trial by default: establishing debate principle and disposition principle; mostly choosing ex-prate debate judgment mode, reasonably absorbing the objection of default judgment mode; and the conceiving of idiographic system.Chapter six: Conclusion. Summarize why and how our trial by default should be reconstructed.
Keywords/Search Tags:civil procedure, trial by default, default judgment mode, ex-prate debate judgment mode
PDF Full Text Request
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