On The Perfection Of Non - Litigation Procedure

Non-contentious procedure is an important part of the civil trial proceedings. In our civil procedure legislation, it does not use the concept of “non-contentious procedure”, but the content about “special procedures” in Chapter XV in “Civil Procedure Law” substantially refers to the non-contentious procedure. Considering the imperfection of civil theory of civil procedure, like the lack of understanding of duality theory with nature of the judicial power,and the conflict between the current legal regulations and theory of Res Judicata; the insufficient in China’s non-contentious includes close and dependent general regulation and lack of specific rules of procedure; the urgent need of confirming reform orientation about civil trial system and perfecting civil and commercial law, improving China’s non-contentious is significant. There are two kinds of legislation model in civil law countries that legislation alone mode and one legislative model. Combined with foreign experience, our country should improve the following three areas: using “non-contentious procedure” replace “special procedures” which make law-making stipulation form verge to scientific and the legislative meaning more exact; keeping openness of non-contentious’ trial object and clarifying the way of transforming non-contentious to judicial proceedings and improving the normal regulations of non-contentious through confirming procedural safeguards of basic trial principle, system and privy of non-contentious; In the aspect of adjusting scope of accepting cases of non-contentious, getting rid of proceedings of cases concerning qualifications of voters with public law nature from non-contentious, bringing supervisory proceedings and procedure of service by publication which belong to non-contentious in, and adding company’s and domestic non-contentious. So, non-contentious’ function that preventing dispute, making the process more simple and efficient, expanding the scope of the right to appeal and refereeing diversification can be achieved.