Studies On Trial By Default System Of Civil Procedure In China

Trial by default means trial by court in the situation of one party's default during the period of word debate. Trial by default is used for avoiding delayed litigation and unjust litigation. As one indispensable system of civil litigation, trial by default has three aspects of function: firstly, ensure that the civil jurisdiction is utilized properly; secondly, protect two parties'litigation right; thirdly, realize the efficiency and equity of litigation. In order to bring the function of trial by default system on rights relief and procedure protection into play better and fully, western countries have developed two typical modes of trial by default system, that is doctrine of trial by default and doctrine of exparte debate. In our country, however, with the influence of procedural idea that is in pursuit of absolutely objective authenticity and the procedure mode of transgress of authority formed chronically, the system of trial by default has serious drawbacks in system designing and practice operating. They embodies as follows: simple and crude legislative techniques and bad operability leading to low procedural efficiency; making a difference between plaintiff and defendant which betrays the principle of litigation equality; trial by default initiated by court infringing party's disposal right; the existing remedy methods for default judgement violating the principle of procedural justice and so on. The existing of these drawbacks results in the function of trial by default system in our country is hard to be realized. This paper holds that, between two modes of trial by default system, doctrine of exparte debate can better harmonize the substantive justice and procedural justice, procedural impartiality and procedural efficiency and other values, reflect the pursuit of procedural stability; but doctrine of default judgment with its unique function can overcome the limitations of exparte debate by proper improvement. Comparing the two modes of trial by default system and combining our country's specific situations, this paper suggests building a system of trial by default that makes the doctrine of exparte debate as main part and doctrine of trial by default as supplement part, at the same time, perfecting the legislation about standards of default; specifying the conditions of the application of trial by default ; perfecting remedy methods of default judgment, in order to form an intact and systematic structure and ensure the fulfillment of the value target of civil litigation.