On The Attacking And Defending Acts Of The Parties In Civil Procedure

The Attacking and Defending Act of the parties in civil procedure (hereinafter as "ADA" for short), is the specific form of the civil procedural act in interactive coordinate, is the important content of the civil procedural operation and, is the carrier embodying the principle of program subjectivity, is the basis for the court's justice judgement. ADA is one of the important civil procedural Acts implemented by parties, its essence is a get-force procedural act, and it can be manifested in many forms during the civil procedure, such as claim presentation, counterpleading, testifying, etc. ADA is not only the conflict and interaction between the parties'procedural acts, but also the restriction and coordination of the parties'procedural acts to the court's procedural acts (trial acts). This paper attempts to take the cooperationism theory as concept, the procedural act theory as basis, with the vision of comparative law study to establish the basic theory system of ADA; and attempts to take the China's existing legislation as basis, to reconsider the related procedure theory in China and, to establish a basic rules system of ADA by drawing lessons from the extraterritorial legislation.This paper has more than 36,000 words totally. Besides the introduction and conclusion, there are four parts to study ADA.The introduction, describes the object of this paper is ADA, and summarizes its theoretical and practical significance: ADA theory is an integral part of the civil procedure theoretical system, is the embodiment that a civil procedure theory research is toward fine development; ADA is the valid means to promote fairness and efficiency of civil procedure, to optimize the litigation strategy, and to avoid litigation raids. In addition, the introduction also shows that this paper has used two types of research methods, i.e. methods of hermeneutics law study and comparative law study.Part I, discusses systemically the basic theory of ADA, including the ADA'concept, essence, theoretical foundation and the procedural functions. This paper considers that, ADA are the fact claiming the parties implemented in the current trial stage by furnishing litigation information, as well as the testifying while the claims is contentious, and its essence is the parties'get-force procedural act. On the one hand, under the cooperationism, the function of ADA needs the basis of the adversary principle, the momentum of the burden of proof, and the supplement of principle of good faith, the safeguard of the judge's clarification liability. On the other hand, ADA has the procedural function of discovering the case's truth, avoiding the litigation raid and embodying the parties'procedural subjectivity, stimulating the parties'procedural initiative to drive the litigation process.Part II, introduces ADA theory of the two genealogies of law in detail. Civil Law system as Germany, France and Japan as representative, its ADA theory is on the basis of the adversarism. Thereinto, Germany is the birthplace of ADA theory, and Japanese ADA theory which is further refining is in succession the theory of Germany. ADA theory in Common Law is the inevitable product of its adversary procedure, and its self-contained pretrial procedure as an effective procedural ensurer of implementing ADA.Part III, reconsiders tentatively the theoretical foundation of ADA in China, and expounds primarily the adversary principle, the principle of good faith, the burden of proof theory and the procedure model theory which have impacted on ADA. First, the "non-binding" adversary principle in China has obscured the target and scope of ADA, therefore leading to judgment raid easily; the aggrandized procedure-manage power of the judge have weakened the self-determination and enthusiasm of parties to practice ADA. Second, the deficiency of the principle of good faith in China's civil procedure causes the misuse of ADA. Third, China's burden of proof theory as well as its rules system has failed to lead and standardize the ADA specifically and directly. Fourth, China's powerism procedure mode is the institutional factor which has made ADA become a mere formality, and then vacuousize the adversary procedure.Part IV, attempts to establish an ADA rules system. One is to radicate ADA's legislative status, including its legal form, its practice subject and limitation. The second is to standardize the parties'Claim-Presentation Acts, and basing on the burden of Claim-Presentation, to fix on the objects of Claim-Presentation Acts and its limitation, as well as the punishment rules of the burden of Claim-Presentation and. The third is to standardize the Evidence-Production Acts of the parties, grounding on the burden of proof, to clear the rules and its effects of the principal evidence and the counterevidence, and to enhance the burden of evidence-production. The fourth is to set up the safeguard mechanism of ADA, including strengthening the good-faith obligation of the parties and improving the judge's clarification liability. The conclusion reiterates that, it is a conversion of the research concept to observe the dynamic civil procedure from the view of procedural act, and the research on ADA has a great significance for China's judgement way reform.The possible innovation points in this paper are as follows: to define the concept of ADA and its related concepts, to summarize the theory system of ADA, to establish the rules system of ADA. Consequentially, there are some faults in this paper because of the lack of research data and the rushing time. For instance, some theoretic points'argumentation is not sufficient, the so-called "system" also needs to be enriched and perfected constantly, and the lack of positive investigation, may cause the "rules" of the operation to be weakened, and so on. These deficiencies may be the studious direction in the future.