Font Size: a A A

Civil Complaint Rules

Posted on:2008-12-02Degree:MasterType:Thesis
Country:ChinaCandidate:H Z HuangFull Text:PDF
GTID:2166360218460854Subject:Civil Procedure Law
Abstract/Summary:PDF Full Text Request
Civil complaint rules are becoming a focus in our country recently. In face of the reform of civil litigation system, scholars and judges have a total opposite view. Scholars insist on changing the current strict rules to the unrestricted one , while judges oppose with a firm hand considering the realism. the amendment of civil procedure law is included in the lawmaking scheme by the standing committee of the congress In the spring of 2007, so the argument will be more drastic in the future. This article aims to conciliate the gap between scholars and judges by investigating the current system pragmatically and profoundly, and find a conclusion in the necessity and probability of the reform, and bring forward a concrete resolution.This article defines the concept of civil complaint rules firstly, differentiate it between the correlative concepts in continental system., then introduces the civil complaint rules of major countries falling within continental law system and Anglo-American law system. By contrast with the litigation phases in continental law system, and by analyzing some cases, this article reveals our complaint rules exist both in specific legal provisions and lots of underlying rules, it includes both procedure rules and substantial rules, both legal rules and political rules, thus builds up a high lawsuit threshold. Then the article analyzes the reason of recent litigation qualification, finds it fits with the economic and political foundations in the past, and also has a thick historical tradition. As far as the civil procedure, current complaint rules also adapt to the theory and practice in the past. While the qualifications become improper in the recent years with the changing of economic background and the civil procedure innovations. So it is the time to change the high litigation threshold now. The author suggests to reduce the qualifications in the beginning of lawsuits, and put those substantial terms after the startup of lawsuits, and remain those formalistic qualifications, such as a eligible pleadings, costs payment and service burden. To avoid the abuse of rights of civil litigation, the author adjusts the relevant civil procedure. Firstly, she rectifies the scope of jurisdictional power, point that the political complaint terms infringe the right of access to courts badly and should be deleted ultimately, in view of the current social circumstances, she proposes a temporary plan which is courts should checkup these terms in the process of litigation. Secondly, she suggests to constitute a series of legal system, including alternative dispute resolution, discovery, and punishment for the abuse of litigation rights to balance the benefit between the plaintiff, defendant and the country.
Keywords/Search Tags:civil complaint rules, interest of action, the scope of jurisdictional power
PDF Full Text Request
Related items