The Basic Principles Of The Civil Procedure Law Of Reflection And Reconstruction

As the base of the whole civil procedural law , fundamental principles of civil procedure law direct civil litigious activities .So it is necessary and useful to study it. The content of the thesis analyses the defect of fundamental principles of civil procedure law enforce and makes some rational suggestion by referring to the successful experience of foreign countries and indicating the theoretical contradiction on fundamental principles of civil procedure law.Except preface and ending, there are four parts in the main body:Part I, as the beginning of the thesis ,introduces the different two viewpoints on fundamental principles of civil procedure law, namely "principle in common and peculiarity doctrine" and "theory of fundamental principles of civil procedure law" .The former is popular in the early of science of civil procedure law, that is, 1980s'. But it is irrational and unscientific, for it was offered just from the angle of interpretation and based on preparatory period of science of civil procedure law. On the other hand, the latter was offered at the beginning of the 20th century, introspecting the fundamental principles of civil procedure law enforce and making many new viewpoints and theories. That absolutely made great progress. The theory interprets the internal meaning of fundamental principles of civil procedure law superficially, therefore, it is necessary to arrange it.Part II,establishing level of fundamental principles of civil procedure law is studied on. The author begins with character or level such as legal nature, special nature and basic nature in the fundamental principles of civil procedurelaw, and thinks that establishing fundamental principles of civil procedure law should be based on fundamental value and basic contradiction. Furthermore, I prove that fundamental value of civil procedural law are justice and efficiency and basic contradiction is opposite and unity of litigious right and adjudicative power. At the same time, I analyse the question on configuration of litigious right and adjudicative power in the civil action and pursuit of justice and efficiency by comparison with the civil action in foreign countries, so as to offer some experience about establishing fundamental principles of civil procedural law in China.Part III , the two main structures of civil action in force "adversary proceeding" and "litigious structure of ex office doctrine" are studied on. I think that we can't only regard configuration of litigious right and adjudicative power in the civil action as fundamental question and ignore the pursuit of value on the back of the two rights. In this way, we can't contribute a law safeguarding the rights of the party interested, even impede the fulfillment of legislative concept. I try offering that legal basis of fundamental principles of civil procedure law are litigious right which is effective and adjudicative power which is judicial. I think that legal structure is value - fundamental principles -concrete principles - basis rule - concrete rule by referring to system science.Part IV,accomplishment of fundamental principles of civil procedure law enforce is studied on. The value of the action are justice and efficiency in the civil action, and basic contradiction is opposite and unity of litigious right and adjudicial power. So I think that fundamental principles of civil procedure law should be adversary principle, ex office principle, principle of proportionality and good faith doctrine.