Civil Pretrial Procedure

This thesis is devoted to the most highly debated issue in the area of civil procedure law, namely, the formulation of civil pre-trial procedure. It is divided into four parts.The first part gives an innitial discussion on the basic theories of the civil pre-trial procedure, which is defined and the basic function of which is confirmed. First of all, the name of pre-trial procedure is studied to locate a proper name that complies with its nature. The following part focuses upon the comparative study of different theories so as to optimize a right option. The other part summarizes the nature of pre-trial procedure as the specificity of the time, the indepedence of procedure, the speficiation and the inevitabiliy of the procedure. Three functions are summarized as collection and fixation of evidences, settlement of disputed issues, and alternative dispute solution.The second part starts from the relevant systems of the two major legal systems and reviews the set-up and the current operation of relevant systems. As to Anglo-American legal systems, the U.S. is the typical representation of the adversarial system, which consists of three phases as the complaint and answer, discovery and pre-trial conference. The pre-trial procedure has been fully functioned. As the origin of U.S. legal system, English civil pre-trial procedure is divided into pre-trial preparation, pre-trial procceding and pre-trial remedy. Although U.S. and England has different systems, but share the common theoretical basis. As for continential legal system, France is the avant-courier of civil procedure law, which regulates four ways of civil pre-trial procedures influencing the other jurisdictions. German civil pre-trial procedure regulates oral preliminary initial date procedure and written preparation procedure. Japan's pre-trial procedure comes from Germany but has its own characters. The common grounds and differences of the two legal systems in the pre-trial procedure are also analysed in this part. The third part is dedicated to the analysis of the domestice legislative and judicial status quo including the defects of the reforms in the pre-trial procedure. The legislation of pre-trial procedure before 1991 is separated into different regulations while that after 1991 is promulgated in the Chapter of pre-trial preparation of Civil Procedure Law. However, the legislation is far from perfect. Supplemented by judicial interpretations, an independent and scientific civil pre-trial procedure is not yet established. While in practice, first determination then trial, one-shot trial, several-shot trial and general filing mode have emerged. The above four are separately introduced and practical drawbacks like lack of parties',participation, irrationality of judicial orientation and allocation of judges, serious defects in procedual aspects, etc. are summarized.The fouth part, on the basis of the study carried out in the former three parts, focuses on the basic idea on how to formulate domestic civil pre-trial procedure. Borrowing foreign experence and based on the domestic reality, the detailed scheme shall be brought forth in the following four aspects. First, the pre-trial procedure shall be oriented in adversarial system combined with inquisitorial system, namely, the cooperative pattern. Secondly, assistant judge shall lead the pre-trial procedure. Thirdly, the function of pre-trial procedure shall be reinforced and the system of complaint and answer, exchange of evidence and pre-trial conference shall be established. Finally, as the powerful force of pre-trial procedure as alternative dispute solution, reconcilation and mediation shall be achieved with full force as the result of judgment can be reasonably expected. Throuth the above study, it is the author's hope to contribute to the revision and reform of pre-trial procedure.