On The Perfection Of Our Civil Procedure Of Pre-trial Procedures

Pretrial procedure, on which justice and efficiency of civil judgment directly depend, is an integral part in the process of civil action and is very important in the early stage of civil procedure. In western countries, it is becoming a common trend to focus equal attention to pretrial court room trial only in the previous days. Pretrial procedure is becoming an important indispensable stage in civil actions. It has indefinite realistic significance to build a meticulous systematic operative pretrial procedure in accordance with the reality of China. In recent years, some consensuses have been reached on the basic issues theoretically and practically. But, in a strict sense, there is no civil pretrial procedure established in the present legal system. This remains one of the reasons contributing judicial dilemma in civil action.This paper offers a complete analysis of the defects and their causes in the present pretrial procedure in China by elaborating the basic theory of pretrial procedure in civil action in light of its development in the representative countries of the two genealogies of law. And then, the author further advocates his tentative ideas on improving the civilpretrial procedure in China. This paper consists of three parts, namely the introduction, the body and the conclusion.Beginning with the basic issues concerning civil pretrial procedure, the author introduces its definition, nature, aims and functions systematically. He advocates that civil pretrial procedure, serving to ensure the timely and smooth conduction of court trial, consists of all the independent before-court-trial actions conducted by the pretrial judgesdesignated by the court over the accepted case during the period from the date of the plaintiff's / plaintiffs' complaint or the acceptance the complain by the court to the date of court room hearing. It is an independent procedure corresponding to court trial that possesses its unique characteristics. Generally it functions as: sorting out and identifying disputes, exchanging and identifying evidence, promoting settlement of disputes etc. Nowadays, these functions are attracting moreand more attention. For the end of judicial democracy, fairness and efficiency in civil actions, reforming and improving civil pretrial procedure are closely concerned theoretically and practically.After the introduction of the basic theory, the author analyzes pretrial procedureby comparative study. By comparing the two genealogies of law, focusing on the US, the UK, France, Germany and Japan, he elaborates two different modes: the adversary system and the inquisitorial system. These two modes, though quite different from each other with the influence ofhistorical backgrounds, legal traditions, cultures and means of presenting a complaint, each have their own merits and defects respectively. All the above-mentioned countries are continuing their judicial reform and have adopted some similar measures, such as strengthening the power of judges and employing adversary system and inquisitorial system simultaneously. These trends have significant reference value in the course of strengthening and improving the pretrial procedure in China.Through the analysis of the present conditions and problems existing in the pretrial procedure in China, the author points out that the civil pretrial procedure remains dependent on and serving court trial as one of its means,though the "preparation before court trial" requirement appears in the present Law of Civil Procedure of the PRC. Developing from the three-step-to-court system to one-step-to-court system in civil procedure and to the promulgation and implementation of Regulations on Evidence inCivil Action by the supreme people's court, civil action procedure in China has been improved and inquisitorial system reduced. But further improvement in legislation is expected in light of the confused procedural functions, unduly designated jural relations, devoid and dummy content and the deficiency of pretrial power.Based on the analysis aforementioned, the author puts forward his tentative ideas on this issue, that is such pretrial systems as the loss of rights on evidence system, peremptory pleading system, evidence collection system, judicial instruction system, pretrial conference system and pretrialmediation system should be adopted in civil pretrial procedure, within the principles such as the principle of combining adversary system with judicial supervision, the principle of effectiveness and efficiency, judicial justice, and the principle of adopting and referring to foreign experience in accordance with the reality of China. He suggest that pleading procedure, evidence delivery and exchange, pretrial mediation,pretrial conference and referral case should be included in the framework of civilpretrial procedure. Only in so doing, the author argues, can a civil pretrial procedure in accordance with the reality of China be established and serve civil actions better in China.