| In the worldwide reform tide of pretrial procedure, the reconstruction of pretrial procedure has come into the schedule of China Civil Judicial Reform, and the study of theoretical circle in this field is becoming more and more active. However, there is a common problem in the introduction of pretrial procedure system of developed Law-ruling countries in both theoretical and practical circles: Out of the utilitarian purpose, the "Discovery" as an ingredient of pretrial procedure pattern is "Over-concerned", while the pleading sector therefore is neglected. Viewing from this angle, by means of historical and comparative analyses, this article gives a crude description of the evolution of pleading procedure which originated in the Common Law Times, tries to clarity the evolutionary clues of the attributal & functional orientation and show the functional system thereof on the basis of historical description, mergesthe evolutionary history of pleading with the general evolution of pretrial procedure pattern in Britain and America, illustrates the historical inevitability of pleading being one of the two poles thereof and it's necessity to provide procedure introduction and restraint for the discovery process thereafter, and draws the following conclusion: It's just through pursuing the balancing & restraining mechanism between pleading and discovery that modern Britain and America pretrial procedure has realized the Two-stage Pattern Optimization and made it operate well on the support of A Ring-within-Ring Dynamic Mechanism. Further, all of these historical and comparative analyses aim at pointing out the malpractice of over-emphasizing onepole--discovery--of the pretrial procedure pattern andneglecting the other one--pleading--out of theutilitarian purples in the reconstruction of modern China pretrial procedure; putting forward the proposition of establishing modern pleading system to match the evidential pretrial procedure and form a virtuous two-stage pretrial procedure pattern as well as provide a Ring-within-Ring dynamic mechanism for the progression of pretrial procedure of modern China; and further defining the attributal & functional orientation should be followed, the functional elements system should be pursued and some sector-establishment necessary in system construction to establish modern pleading procedure in China.There are about 50,000 words totally in this article, the main body of which consists of four parts:Chapter one makes a historical analysis of Common Law Pleading pattern in the Common Law Family, with the stylizing development progression of Common Law Action under the command of writ system as the thread. Starting with royal judicial system in the early days of Britain Common Law System, it details the oral-to-written and incourt-to-outcourt evolution of the pleading procedure at Britain Common Law times, deeply analyzes the evolutionary course of the attributal & functional orientation, and on the basis of this completes a preliminary generalization of the functional element system thereof.Chapter two makes a historical analysis of Equity Pleading pattern in the Common Law Family, with the formation and evolutionary course of Equity Action system as the background and thread. With reference to the Common Law Pleading pattern described in chapter one, it deeply analyses the change of it's attribute and the transference of it's functional orientation in the transforming from Common Law pattern to Equity Pleading pattern, and on the ground of this analysis completes a preliminary generalization of the functional element system of EquityPleading.Chapter three reviews the modern evolutionary process of Britain and America pleading with the modern civil procedure system reform thereof as the background and thread. Paying special attention to the dynamic mechanism propelling pleading and the micro-procedure-establishment forming this dynamic mechanism, it details the existing pleading system from static level to dynamic level by reference to the latest legislative... |
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