Study On The Debate Principle In Civil Procedure

As the basic principle of the civil procedure, the debate principle embodies the litigants' judiciary freedom in the lawsuit action . That means, decides the litigant's right in civil procedural action is more or less, whether the debate principle in civil procedural law is regulated reasonably or not. However, in our justice practice, the debate principle has not been implemented well, and the litigants' debate suffer the super restrictions. The reason is that, our present legislation has some limitations . Through reviewing and comparing the debate principle of the western two law system, the article indicates the shortage of our present civil procedural law.At the same time, the article puts forward some concrete ways for and perfecting the debate principle of our country.There are four parts in this thesis:The first Part of an article deals with a case lead to the debate principle, which introduces the theory foundation of the debate principle, for example, the content, the value and so on . According to the Western civil procedure theory that the debate principle's primary meaning is refers to, the ligitigation system or the basic principle about the fact which is the foundation of the adjudgement only can be took by the litigants and must be debated, otherwise , it can not be the foundation of the adjudgement. Then the paper analyzes furtherly the debated principle's value, which is reflected on some expects: to guaranteet judge's neutrality and the dominat of the litigants ,to prevent raids in procedure and realize the effectiveness of the civil procedure ,and give a basis to the followings.The second part reviewing the origin of the debate principle.Comparing the connotation of the two law systems' debate principle lay the foundation for the reform and improvement of the debate principle . First of all, Presenting the development course of debate principle in the historical angle, adopting the length ways analyse . Debate principle originated ancient Rome and was replaced by Inquisitorial Procedurein the Middle Ages . In 1789 after the victory of the French Revolution, the people talk about the debate principle again. In The Civil Procedure Law carried out in 1806 , the debate principle was established and retained. The article adopted cross-cutting methods analysing the debate in the civil law system represented by France Germany and Japan and in the common law system represented by Britain and the United States respectively. And comparing the meaning of the principle of Two Legal debate. the author point out the advantages of the debate principle in two legal and give a direction about the reform and development of in china .debate principle on the principle that the reasonable and the advantages of specifying the principles of China's civil debate on the direction of reform and development.The third part of the paper analyse the provisions of the debate principle in civil principle and the debate principle's history in china.The article points out the shortage of our debate principle, and explains the reason for the shortage. Debate principle in our civil procedure's shortcoming embodies the following facts: First, the content of debate principle is limited in formal debate right, not defined it's consequences clearly. Second: the procedure impartiality and litigant's dominat position are not repected completely. Third: debate principle has no constraint force to litigants. Fourth: judge has too much discretionary power then they are easy use rights arbitrary and bring about corruption .The fourth part of the paper conceiving the reconstruction of our debate principle . From established the corresponding systems and procedures, and give specific comments and suggestions to reconstruct the debate principle . The author put forwords to establish the system of judge's explaination power establish the violation system of the debate principlesystem and so on. Reconstruct the debate principle in pre-trial procedures and court procedures aspects.