Preparation Procedures. Civil Pre-trial Research

Civil pretrial preparation procedure is the starting point of the whole civil litigation procedure. It affects the course and the result of the trial .The function of the pretrial procedure lies in promoting litigant democracy and justness, guaranteeing procedural benefits and stability. Viewed on the developing tendency of the Western civil procedural laws, the civil litigation procedural emphasis has shifted from on hearing to on both hearing and pretrial procedure. Compared with foreign legislation, there is no special and independent pretrial procedure in China's Civil Procedure Law, and theoretical study on this area was begun very late. This thesis firstly studies the basic problems of the civil pretrial procedure. The thesis aims at making further study on the procedure, considering China's condition and learning some useful experience from the Western, so as to put forward relevant legal reflection on the establishment of the system of China's civil procedure.This thesis consists of three sections: introduction, body and ending. In the introduction, the author simply discusses the reason of choosing the civil pretrial preparation as the master thesis, analyses the deficiency of our country's practice and illustrates the necessity of establishing China's civil pretrial preparation procedure.This thesis's body consists of three parts as follows.The first part: The author firstly analyses concepts of the civil pretrial procedure, then demonstrates the author's understanding of the concept and its characteristics, Civil pretrial procedure is an important part of the whole civil litigation procedure. And it includes a series of preparing work from accepting and hearing a case to opening a court session taken by the court, in order to find out the case, collect evidence and make the civil case fit for opening a court session. It carries the basic function of finding out the pleading and replying, comprehending the case, knowing the condition well in order to make the civil case fit for opening a court session. Secondly the author makes further study on four main values and four main functions of the civil pretrial procedure.The second part: Through making an introduction and comment between the Anglo-American judicial system taking England's and America's as examples and the continental judicial system taking France's and Germany's as examples, the author finds their common features and differences in the civil pretrial procedure .The author simply analyses the five common features of the pretrial procedure and the causes of their differences between the two judicial system which are jury system, litigation models, law tradition and judge's role and their respective problems . These two moods show a tendency of consistent through mutual absorbing recently.The third part: the author reviews and makes a comment on China's civil pretrial procedure from the aspects of its practice and legislation. At first, the author analyses the process of the improvement of the civil pretrial procedure and comes to a conclusion that the tradition of stressing pretrial procedure and ignoring pretrial procedure cannot adapt to the civil judicial action. Secondly the author comments on the civil pretrial procedure legislation, pointing out that legislation lagging behind practice holdbacks the civil judicial reformation. Then the author analyses the defects of the pretrial procedure in existence.In consideration of the above, the author thinks that we should build an independent civil pretrial procedure in order to promote the integrative change from the old civil procedure system. It is high time a new pretrial procedure should be established. Therefore, learning from the useful experience and effective methods of Western countries, the author proposes the following ideas to construct Chinese pretrial procedure of civil action: Establishing an independent pretrial procedure in legislation; to perfect appealing and pleading function; to set up a position of pretrial judge; to build pretrial conference; to perfect the parties' right of discovering; to add the function of the pretrial procedure, leading variety solution ways of the issue onto the pretrial procedure to apply the litigation resource fully.