On The Criticizing And Reconstructing Of Civil Judgment By Default In Our Country

The ideal judgment is based on the foundation that both parties appear in court and fully debate. The meaning of the party participating in the procedure, lies in the justice of the procedure and realizing the maximum entity's authenticity. The judgment by default focuses on terminating the procedure and adjudicating in time. It is a kind of punishment of the absentee in a certain meaning, pursuing the maximization of the lawsuit benefit on the basis of just procedure. The system of judgment by default is the right remedying to but not deviating from the judgment of the mat.From the angle of the party participating in the procedure, the system of judgment by default can only be a kind of exception but not normality. While the judgment of the mat becoming impossible. The judgment by default is that don't investigate and collect evidence any more on the basis of benefit and just of the procedure, and make the judgment according to the original evidence material directly. Various countries make the regulation to the system of judgment by default, It becomes a great characteristic of the system of modern civil justice. Though our country legislated to stipulate the system of judgment by default, It is extensive generally and difficult to operate. And, because the constraint of traditional idea of "valuing entity more than the procedure", the court is often still investigating and collecting evidence when one party is absent, can't make the judgment in time . It leads to that there is no judgment by default in practice.From the idea of the legislation and the administration of justice, Our Civil Procedure Law doesn't follow the real sense of judgment by default. It reflects in three aspects: First, value plaintiff more than the defendant, has not embodied sanction against the absent plaintiff; Second, value court more than parties, emphasize the dominating of the court excessively; Third, value the absolute truth, doesn't end the procedure in time, the independent value of just in procedure is not outstanding.Reconstructing the system of civil judgment by default of our country, should establish the idea of real judgment by default, structure the highly compatible civil action mode, set up the mode of judgment by default with Chinese characteristics, set up the mechanism of balancing each other with lawsuit right and jurisdiction.