The Civil Trial System

The civil trial by default is an important institution in civil litigation procedure andit reflects the value choice and the style of a country?ˉs litigation in some degree. Thetrial by default had appeared since the time of Rome law, experiencing a very longperiod and including three stages: traditional default judgment mode, default judgmentmode, ex-prate debate judgment mode. The splendor of the litigation theories and theprocedure value is reflected in the developing history of the trial by default. Manycountries have detailed rules of trial by default. According to the rules in modernforeign procedural law, there is some difference on the definitions, constitutionconditions and objection procedures. Such difference does not only come from theculture and tradition of law, but also from the different considerations and the choiceson legislation styles and litigation values. In China, there are rules on trial by defaultfrom the Article 129 to 131 in . However, the trial by defaultplays a small role whether in the theory or in the practice. Independent theory andsystem don?ˉt emerge and the judges seldom apply such an institution because of thepursuance of objective justice. Therefore, it?ˉs very meaningful to study the institution oftrial by default for its perfection.The article divides into six parts.Introduction: The Part states the significance of trial by default and sums up thebasic content and defections of trial by default in our country, including the purpose andmeaning of this article.Part one: Summarization of trial by default. Sum up the definition of trial bydefault and compare the trial by default to the default judgment. Introduce thedeveloping history of trial by default chiefly.Part two: Analysis on the theory base. The theory base is the justice and efficiencyof litigation. Scientific and reasonable institution is helpful to unify the justice andefficiency. There are two basic modes of trial by default: default judgment and ex-pratedebate judgment. The two modes have their own characters and can be used for theperfection of trial by default in China.Part three: Legislation studies and analysis .Introductions and comments on thelegislations of America, England, Germany, France and Japan ,making the foundationfor the analysis of the defections of our country?ˉs institution and the perfection of ourcountry?ˉs institution on trial by default.Part four: Present conditions and defections of our country?ˉs trial by default. Thetrial by default in our country is neither ex-prate debate judgment mode nor defaultjudgment mode. It goes against the civil procedure notions in the following aspects:First, treating plaintiff and defendant differently goes against the principle of equality.Second, the definition is ?°absence?±, not ?°debate?±. Such definition is against the civilprocedure principle of debate. Third, influenced by the procedure pattern of ?°superfunction?±, our country?ˉs trial by default underlines the power of judge and ignores theparty?ˉs right of disposition. Besides, the defections and blind areas in legislation lead topoor operation in practice and damage on the authority of jurisdiction.Based on the reality in our country, the author suggests that: ex-prate debatejudgment mode should be the basic principle and the limited default judgment mode bethe supplement;Real debate principle should be set up and the judge should be limitedby the parties?ˉ debate;Make clear the applying conditions for trial by default further andthe retrieval procedures.Conclusion: Sum up the total achievement and meaning of the article.