On Record System In The Civil Court Trial In China

The purpose of the lawsuit is to ensure the complete exercise of rights. In the civil lawsuit, the judge tries his best to seek the substantial justice in judging the case. However, he should pay more attention to the procedure justice all the time. The idée that procedure is as important as the substantial has a foundation in the judicial practice. Holding a court for a trial is the central link in the trial of the civil case. All the evidences can be taken as the basis for designating the case only when they are shown in the trial in court. This principle embodies the importance of holding a court. The record of the trial in court is a written material recording the whole process of the trial in court. Its quality has a direct influence on the judging consequence of the case. However, the judge, recorder, parties concerned as well as other participants in the lawsuit ignore the value of the record of the trial in different degrees. In addition, the attention paid by the legislative organ is much less than the rate of the increase of the economic development in China. The current record system of trial in court has many shortcomings in the legal issues appearing in the situation where the economy increases rapidly. This paper analyzes the shortcomings in the current record system in the civil court trial by associating several legal phenomenon affecting the value of the record of the court trial in the civil trial practice and proposes the advice on constructing the record system of the civil court trial in China, hoping to make contributions to the construction of the record system in the civil court trial.The first part illustrates the origin, content, definition and character of the record in court trial. At first, this paper analyzes the origin of the record in court trial. The production of any lawsuit has the aim to exist and the record in court trial is no exception. Its purpose for production is to fix the whole process of the court trial and it is reflected in the file of the trial case in the People's Court. As a kind of important legal document, the record of court trial must be stipulated in legislation. Viewing the related regulations of the civil lawsuit law about record of court trial and associating the content of article 1 in the 133rd term of the civil lawsuit law: clerk should register all the activities of the court trial in the record which is signed by the judicial officer and the clerk, then this article of law is the origin of the record of court trial. Then this paper introduces the detailed content recorded by the court trial record and its focus. In form, it can be divided into three parts: the head, main body and the tail, among which, the main body is the focus of the record of court trial. Furthermore, this paper makes the definition for the record of court trial by associating the stipulation of law: record of court trial is also called record of court. It is a written account, reflecting objectively all the processes of the court trial activities. It is made by the clerk simultaneously. By analyzing and understanding this definition, this paper states the character in the deep level of the record of court trial: legitimacy, objectivity and synchronism. At the same time, this paper points out that objectivity is the most important character of the record of court trial and makes an illustration to the relationships among the three: legitimacy is the basis of the objectivity, synchronism is the guarantee of the objectivity and objectivity is the concrete embodiment of the other two.The second chapter makes the evaluation on the legal value of the record of court trial from three aspects. Firstly, record of court trial is the only basis of the trial judge, which is also called the file exclusion principle. It derives from the principle of administrative hearing procedure. Though it is not proclaimed in writing in civil lawsuit law in China, it is embodied in the legislative real intention in article 47 in Some Regulations on Civil Lawsuit Evidence of the Highest People's Court. We can fine that this value of the record of court trial is the necessary embodiment for the legal value of the trial procedure as well as the seeking goal of the procedure justice. Secondly, record of court trial is the powerful evidence for embodying the legitimacy of the trial procedure. Whether the court trial progresses legally is the key of the legitimacy of the trial procedure. After the court trial participants check the record of court trial many times, the record has fixed the whole process of the court trial in the file in written form. As a historical record, no one can ratify it. Whether the trial procedure is legal must be embodied in the record of court trial. In addition, record of court trial is the important guarantee of the juristic supervision. Juristic supervision organs carry out the case supervision. The main purpose is to ensure the fair judge of the case. The supervision method is to look at the record of court trial. The record with high quality can precisely and comprehensively reflect the whole process of the court trial. Fixing the relevant evidence in written form does good to the development of supervision for the supervision organs and provides guarantee for the afterwards supervision of the supervision organs.The third part of this paper states the problems in the record of court trial in judicial practice and analyzes the three juristic phenomena that influence the record of court trial. First, this paper introduces the common recording slips of the record of court trial and analyzes the reason for these slips and jumps to the conclusion: the attention paid by the judge to the record of court trial is not sufficient; the educational level and juristic attainment of the clerks is not qualified; the sense of responsibility of the judge and clerks being not strong and the communication not enough is the main reason of the slips. The slips of the record will result in that the record of court trial loses the objectivity, which has serious impact on its value as well as on the judicial authority of the People's Court. Second, this paper makes the comparison for the juristic characteristics from the positive and negative sides by analyzing the reason for the production of refusing signing and jump to the conclusion: the act of refusing signing is a kind of embodiment that the party concerned deals with his own lawsuit right. Though law does not make the negative evaluation on the refusing signing, the act of refusing signing will make the record of court trial indefinite. In addition, this paper introduces the negative impact on the supplementary and ratifying procedure of the record of court trial due to the indefinite stipulation of legislation. Furthermore, in judicial practice, there are many problems in the content, main body and means in the procedure due to the principle set by law on the supplementary and ratifying procedure. Through the analysis of the problems, the quality of record of court reduces because of the indefinite stipulations resulting in the lacking of the supervision system.The fourth part of the paper gives the advice on improving the legislation from three aspects to perfect the record of civil court trial in China by associating the problems existing in the record of court trial in the judicial practice. First, enhance the juristic status of the record of court trial and increase its recording means. Define the principle that record of court trial is the only basis of the trial judge as the civil lawsuit principle. In addition, take the electrical record of court trial made by simultaneous recording and camera shooting as one type of record of court trial. This can provide the juristic basis for the court to make the electrical record and this will improve the current situation of the record of court trial. Second, formulate the detailed regulations for supplementing and ratifying procedures of the record of court trial in order to make it operational in judicial practice. Third, restrict the refusing signing in legislation to reduce its bad impact on the record of court trial.