Studies On The System Of Trial By Default Of Civil Procedure

The system of civil trial by default is an important system in civil procedure law. In other countries, the trial by default procedure generally is specially stipulated as an independent procedure by the civil procedure. However, there are serious defects in this procedure due to flaws in legislation of civil procedure in our country, and technological roughness in trial by default procedure legislation. As a result, it is hard to fulfill the value targets of"procedural fairness"and"procedural efficiency"in the system of trial by default, which is always easily misused and abused by judges or parties in practice. Therefore, the further studies on system of trail by default have great value in both theory and practice in our country.This paper focuses on the issue of the system of trial by default of civil procedure. Besides the introduction and the conclusion, the paper is divided into four parts. The first part of the paper analyzes trial by default on its definition, the two basic modes and its theory base. The paper points out the value goal and the basic theory of the system in the part of its theory base. In Part two, this paper studies and comments on the legislations of England, America, Germany, France, Japan and Taiwan, laying the foundation for further analysis of the defects in our county's institution and the perfection of our country's institution on trial by default. This paper introduces the present situation of legislation in China, and then analyzes its main problems in the third part. In Part four, The article focuses on the perfection of Chinese trail by default. Based on the reality in our county, the author suggests that the judgment by one part debating should be the basic principle and the judgment by default be the supplement in the system of trial by default in China. After establishing this mode of trial, the paper puts forward how to reconstruct the civil legislation notion of default system in our country,including the debate principle, the neutral principle, and the equal principle. At the same time, on the base of innovating the relevant systems of civil action, the author proposes 8 concrete system plans, in pursuit of forming an comprehensive system structure, giving full play to the functions of system of trial by default and fulfilling the value target of civil proceedings.