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Civil Proceedings In Absentia System

Posted on:2007-06-06Degree:MasterType:Thesis
Country:ChinaCandidate:X S ChenFull Text:PDF
GTID:2206360182990846Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
As a very important institution in civil action system,trial by default system wasapplied abroad in civil action activity .Different countries,including our country,havebuilt different rules on the trial by default system. However,in our justice practice,the applying standard of the trial by default system is confused, which often results inthe cases of "ought to judge to be no judge " or "not ought to judge to be judge ".Theconfusion complexion in our practice roots in the lacuna of the legislation of trial bydefault system,which to be described as very simple articles and poor operation inpractice. Therefore, with the deepen push of our reformation on judicatory system, thereformation of the trial by default system also is imperative under the situation.Through reviewing and comparing the trials by default system of central westerncountries,the article analyzes the in-depth modern civil litigation notions on whichthe trial by default system is based. On these bases, the article aims at the actualityand puts forward some concrete ways for reforming and perfecting the trial by defaultsystem of our country.Besides the introduction and conclusion, the article is divided into three parts.Part one: The summarization of the trial by default system. Through the holdingof correlative conception, history transitionary and legislation study on the trial bydefault system of England, the United States, Germany,France,Japan,and China,the article figures out the different characters of the two basic modes of the trial bydefault system and also points out the differences between representative countriesand our country, which includes: difference of the selection of the mode;difference ofthe design on system. These form solid conditions for analyzing modern civillitigation notions on which the trial by default system is based and reforming andperfecting the trial by default system of our country.Part two: Modern civil litigation notions and the trial by default system. As thebases for constructing civil litigation systems, litigation notions must have sufficientannotation in a specific civil action system. The differences of the trial by defaultsystem between representative western countries and our country are root in thedifferences of modern civil litigation notions. The modern trial by default system onlyshould be firmly based on modern civil litigation notions such as the adversarydoctrine, the doctrine of disposition and procedure justice that can it mostly achievethe protection of the procedure interests and the entity rights of the parties.Part three: The actuality and the perfection of the trial by default system of ourcountry. This part first analyzes the defections of our actual trial by default system,which includes three aspects: misunderstanding the function of the trial by defaultsystem and taking it as a punishment means;affection of litigation mode which rootedon authority-ism;inattentions and blind spots in legislation, poor operation in practiceand low litigation efficiency. Then,the article puts forward some concrete ways forreforming and perfecting the trial by default system of our country: taking both theunilateral debate judgment mode and the default judgment mode;Putting forwardseven pieces of suggestion in the design of concrete system, which including: newlydefining the standard of "default";the main-body of the starting-up the trial by default;the applying conditions of the two basic modes of the trial by default system;thelegitimate reasons for the defaults in the mode of unilateral debate judgment;thedifferent disposals as the different main-body of the defaults;the redress of thejudgment by default;the different disposals for special litigation. In the end, thearticle briefly discusses the relation between the trial by default system and othersystems of civil action.
Keywords/Search Tags:trial by default, mode of trial, modern civil litigation notion
PDF Full Text Request
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