Develop The Modern Values From Ancient Chinese Civil Action

In our tradition, there exist two wrong legal views. One is to regard all ancient Chinese law unreasonable, but another to think there is no dependent civil action system at all. This condition has led to many bad results so that very few people are engaged in Chinese ancient civil action, even so that people have even thrown away reference and research for it in some degree, but they directly transplant some contents from foreign countries neglecting the continuations and combinations of our tradition and legal culture. Therefore, there is little strangeness that legal malfunction and misuse spring out, such as serious conflicts between rigid law and custom and huge pressure of court lawsuit and so on. This thesis tries to deeply and completely analyze the main characteristics of Chinese ancient civil action and place it new orientation in order to review and remove the popular unilateral understanding.Firstly, this thesis is to discuss how to define the ancient civil action. The definition of modern civil action that was presented after the translation of under constitutional separation of powers was born means the procedure of judicatory department, namely, the court, which deals with civil disputes. In ancient China, most of civil disputes were dealt with by the local Shaikh, the householder, the village manger, and so on, as ancient judicature was part of the administrative organ and similar to modern judicatory departments. So the results had legal sanction. According to this circumstance, we may offer the definition to the ancient civil action: a kind of situation which the feudal official, the Shaik, the householder, the village manager, etc, they dealt with civil disputes taking place of main state' jurisdictional body.Secondly, the rule of law is not only an ideal outlook that we are always pursuing in modern times, but the best way to run the country. Under this condition, the law with the place of paramountcy surpasses any social regulations. For example, the law which clashes with morality and reason is superior to them without any doubt. In the civil judicatory trial, "judgment of the law" has been the credo of law. Nevertheless, there are many clashed cases between "human feeling,reason and the law" relying on "judgment of the law" in the legal practice. Based on two legal cases, the thesis interprets the reason of "human feeling,reason and the law" clash in the civil judicatory trial and explores the use for reference and specific measure of "human feeling,reason and the law" from legislation and judicature stratifications of ancient "human feeling,reason and the law" compatibility. What is more, the lawsuit which is described as "the protest of right" is praised and supported. However, it resulted in numberless legal cases in court, whose problem is "lawsuit explosion". In America, "lawsuit explosion" has become social problems, which reveals that law is not almighty. Thus, this thesis importantly states use for reference of ancient "reducing lawsuits by mediation" principles. Relating hot issues of appealing to the higher authorities for help, it makes some proposals that we should emphasize, reuse, advocate and perfect "reducing lawsuits by mediation" system.