Research On Issue Identification In Pretrial Procedure Of China

In civil procedure designs, the reform has a transition from the trial system to the civil procedure system, of which civil pretrial procedure is one of the key issues to bring about such a reform. Because issue identification in pretrial is a subroutine procedure, the research is of great significance. On one hand, issue identification exists in all stages of the procedures in practice, which belongs to the scope in which the judge of the case and analyze the adjudicating cases. It is objective and actual. On the other hand, viewing from the function of pretrial procedure, due to the lack of the issue identification in pretrial procedures in China the exchange and identification of evidence cannot play a key role. Therefore, the construction of issue identification in pretrial procedure is imperative. In practice, the judges can summarize the controversial focus in the cases, which is arbitrary, chaotic, and without a system to follow. Thus, while the issue identification in civil pretrial procedure is constructed, we must realize the objectivity and actuality of it and follow the reasonable notion to restricts and design. "Centralism of judgment" and "synergy" are the governing law of the civil issue identification procedures.The system of civil procedure is reformed according to "concentration", which is the second leap in the way of civil trial system. "Centralism of judgment" requires to fix the trial scopes before the civil trial , identify the issues and entitle it effect, namely, new advocates, facts or evidence which affect the case judges are not allowed to be supposed freely during the trial in order to concentrate on the trial and raise the efficiency of the procedures. As to the links that affect the burden of evidence and the choice of claims of the case trial, the judger has the obligations to make statements for the party. Besides, the traditional suppression-trial-atmosphere is abandoned, Instead, the dialogue-exchange-atmosphere between the judge and the party is advocated. So, the writer insists that "written simple issue identification" and "meeting-type issue identification" be established in our country. The first part is the basic theory of issue identification in pretrial procedure. It mainly analyzes the connotation and extension of issue and differentiate between issue and related concepts. Meanwhile, it elaborates on the meaning of issue identification in pretrial procedure and explains the relation between issue identification in pretrial procedure and related procedures so as to grasp the substance of issue identification in pretrial . "No issues, no judges". Issues are the substance to forming the case dispute. The writer understand the issues in a broad sense, that is, the controversial questions between parties that affect the result of the case trial are issues, including the fact issues, law issues, evidence issues and procedure issues. It differentiates among the issues, the subject of litigation and controversial focus. The issue identification procedures and exchanges of evidence both interdependent and independent on each other. To prove time system is a technical devices to guarantee the formation of the issues, otherwise, the formation of the issues is just empty talk.The second part is an essential analysis of the issues identification in pretrial procedures from the governing law of construction and the practical significance of the construction. Speaking from the macro perspective, the structure of civil procedures in our country is faced with changes, the trend of modern civil procedure is "concentration", that is, the case should be completed in one trial phase and it oppose the attack of repeated court and procedures. The issues identification in pretrial procedures come into being under the guidance of this notion.The third part is the study of issue identification in pretrial procedure in other countries and areas. It analyzes the issues identification in civil pretrial procedures of America, France, Germany, Japan and Taiwan of China. Taking a panoramic view of all the issue identification in pretrial procedures in all countries, there are prepared-oral-debate-type pretrial system, conference-type hearing, civil pretrial issue identification manners instead of or even rejecting the court procedures, judge-led the issue identification mode in pretrial procedures, party- oriented the issue identification mode in pretrial procedures. It compares the issues identification in pretrial procedure between all the countries and Taiwan and analyzes the commonalities and differences.The fourth part analyzes the legal provisions and practical operation of China's current stage. The issue identification in pretrial procedure system has not been formed, the party's dominant position is not enough, there is no appropriate system for the judges to follow in summarizing the issues arbitrarily, which influences the realization of the pretrial procedure function.The fifth part sets forth the specific ideas to construct the issue identification in pretrial procedure of China, which must based on the China's national condition and pay attention to the effective interface to the related system. In addition, the construction of the issue identification in pretrial procedure can not be completed overnight, but a gradual process. During the construction of the issues identification in pretrial procedure, we should grasp the relation between the issue identification in civil pretrial procedure and the court judges in order to choose reasonable modes and manners of the issue identification in pretrial procedure and distribute properly the rights and obligation between the party and the judge. The writer proposes "written simple issue identification" and "meeting-type issue identification".