On The System Of Default Judgment In Civil Procedure

Starting and moving forward the Civil Procedure depends on the acts of the parties' proceedings, but actually, only a few parties of the case can actively take part in the proceedings and carry out legal action, if the parties just negative to perform his rights of litigation or should not take part in proceedings because of certain objective factors, it is necessary to have a measure to promote the development of civil proceedings or end the proceedings in some way. Therefore, the system of default judgment has become necessary procedures of the civil justice, and every country is prescribing it in detail. Although the items of 129 and 130 and 131 in China's Civil Procedure law have set up our country's default judgment system, but it is extremely easy, doesn't set the model of system and the relief means, so we can find the omissions of our Civil Procedure law easily. However, the default judgment system often fails to find the equilibrium point between the effectiveness of proceedings and the procedural fairness because of these prescribes in judicial practice. There are many problems, such as conception ambiguity of trial by default system, defects existing in procedure operating, which need to be solved urgently.This text including four major parts beside the introduction and the conclusion, about 3 million words. The main contents are as follows:Part I. the overview of default judgment system. By historical analysis and systems analysis, this part finds the historical evolution of the default judgment system finally. On this basis, obtain a conclusion as follows: the evolution of default judgment system always search equilibrium point in the Procedural fairness and Process efficiency,the protection of the rights of the parties and the Stability of verdict. In addition, it also explained the legal basis of the default judgment system, such as the most important value of the default judgment system is procedural safeguards and to urge the parties to participate in actions timely is a balance procedural justice and Process efficiency. On the basis, Demonstrate that the rationality of the default judgment system's existence in theoretical and practical.Part II. Inspection and analysis for two legal countries and regions' default judgment system. By legislative Investigation, This part makes out some detailed analysis about those legislative provisions. The two main legal system set up different Consequences for a party who does not take part in proceedings because of the litigation model and value. By means of comparative analysis, this part elaborates this two main legal system's litigation model and the corresponding legal provisions. There two main patterns; trial by default judgment mode and one part debate judgment mode. Since modern times, every country has changed its litigation model in accordance with its basic conditions to achieve the best combination of the justice and the effective action.Part III. Actuality state and legislation analyses of trial by default system in our country .this part is established in the fundamental rule of current judgment by default system , deeply analyses the problem and confusion phenomena existing in correlation legislation region and juridical practice. By comparing with abroad legislative, finds out the lack of our country current laws at legislation mode, procedure operate as well as relief approach and other problem. Furthermore, this part introduces a series of question, such as judgment by default system of our country should establish on what kind of law logos , how to perfect a good many blanks of program run and relief approach result from the lack of legal rule, and so on.Part IV. Perfection Of judgment by default system in our country. This part mainly aims at third part question, On the basis of value judgment of Trial by default judgment mode and one part debate judgment mode, by the analysis of necessity of legislative mode selection, combining the theory research actuality and specific status of legislation and juridical practice in our country , indicates that our country should establish a legislation mode which rely mainly on one part debate judgment mode while Trial by default judgment mode subsidiary. At the field of legislation, the key is definitude absent cognizance standard and evidence auditing cognizance rule. In addition, at institutions exact arrangement aspect, puts forward the solution of program run, relief approach and other problems.