The Improvement Of Option Of Civil Procedure

Option of the civil procedure, as a vital procedural right for the parties, is a legislative respect for the parties'willing autonomy, and is also a requirement for the principle of the parties'being the procedural main body. There are specific contents about the parties'option in the laws of civil procedure of both continental legal system and that of those countries with British or American characteristics, and accordingly, they have in-depth theoretical studies. In Chinese law of civil procedure and judicial interpretations, however, the parties'option of civil procedure is not prescribed. Although there are some expressions in the contents, they are legislatively scattered, without a definition to the connotation of the concept. No theoretical system has been formed in accordance with the studies of the option's nature, ways of performance, conditions and consequences. Therefore, there is no matching in legislation for the parties'right to actual participation in the procedure.This paper will discuss this issue in the following four aspects.In part one, a summary of civil procedural option is given, which mainly focus on its definition and the basic issues of its performance. In this part, a definition to the concept of civil procedural option will be given in regard to the existence of various interpretations. Further analysis will be done concerning its connotation, performing conditions, legal effect and forms of inappropriate performance.Part two is about the exploration of and inspiration from foreign civil procedural options. This part explores the content of foreign civil procedural options. By summarizing and analyzing their contents, this paper concludes that option of civil procedure abroad is a very important disciplinary right to the parties. It has wide application and reasonably restricts the juridical authority of the court of law.In the third part, the writer describes the legislative situation and existing problems of Chinese civil procedural option. Based on the previous two parts, this part introduces the present Chinese legislative prescription for civil procedural option and analyzes its limitations, such as the lack of complete theoretical studies and inadequate legislation, which are unsuitable to the transformation of civil procedural pattern. This part serves as an introduction to the following further analysis.The last part focuses on the safeguard and improvement of Chinese civil procedural option. As the purpose and footing of this study, this part suggests that when the law of civil procedure is amended, one more clause be included in the legislation:"This law acknowledges and guarantees the parties'freedom of civil procedural option, improving the option's safeguard mechanism and proposing measures for the improvement of Chinese civil procedural option.