Direct Words, The Principle Of Theory

Neither in the current legislation of civil proceedings nor thetheoretical circle of procedural law is the Principle of direct and verbaltrial incorporated into the system of basic principles of civil proceedings.Despite the listing of direct and verbal trial as a principle of civilproceedings in textbooks for legal education by some scholars,~2 it hasnot been the prevailing perspective. Due to the absence of its guide,there is some dilemma either in theory or in practice..It is proposed in this article that the principle of direct and verbaltrial be incorporated into the basic principles of civil proceedings. Itholds that the incorporation of direct and verbal trial into the basicprinciples of civil proceedings will exert great influence on the structureof court trial and the questioning and authentication of evidence,enhance the incisiveness of trial and help the judge turn in discretionalevidence and form the formal basis for the direct output of informationabout evidence. And its direct way of communication is believed tobuild the interactive dialogue for the establishment of the informationabout evidence which is indispensable to the formation of discretionalevidence of the judge. For this reason, after close examination ofrelative provisions for legislation on foreign civil proceedings, theauthor recognizes that countries in both continental law system andcommon law system have specific provisions for the principle of directand verbal trial in their legislation. And the rule of hearsay evidence isimplemented more rigidly than that of direct and verbal trial. Withcomparison, reference and demonstration, this article deems itreasonable to incorporate the principle of direct and verbal trial into thesystem of basic principles of civil proceedings. Based on this belief, theauthor puts forward some preliminary solutions to the related dilemmato advance the institutionalized establishment of the principle of direct and verbal trial.This article consists of seven constituents. Apart from theintroduction part and the conclusion part, the central argumentcomprises five parts.The first part locates the concept of direct and verbal trial andidentifies the independence and integration between the direct trialprinciple and the parol principle. And discuss the structure of therequirements of the principle of direct and verbal trial from theperspective of four elements of subject, object, time and space andpattern.The second part centers on the collation and stipulation of themethodological basis and doctrines in procedural law on which theprinciple of direct and verbal trial is founded from the theoreticalperspective. Epistemology applied on the basis that litigation discoversthe facts behind the case constitutes the ground on which the principle ofdirect and verbal trial reveals the information about evidence andoptimizes the judge's cognizance of evidence. Through the analysis ofthe source of the evidence and its audience, we would be able to renewthe localization of the questioning and authentication of evidence incourt trial from the perspective of information theory. On itsimplication in procedural law, the principle of direct and verbal trialshapes the procedural justice which assists the substantial participationof the parties to litigation, makes the way of cognizance understandableto ordinary people, and provides the justification of the fact-findingprocess of a case by means of law.The third part aims at the analysis of the legislation origin andrelated concrete institution Of legislation in the continental law systemand common law system through the compared examination of laws inthe two law systems. Based on the different structure of adjudicator inthe two law systems (the adjudication of judge and the dualadjudication by the judge and the jury), there comes distinction betweenthe principle of direct and verbal trial in the continental law system and the rule of hearsay evidence in the common law system.The fourth part returns to the condition of legislation and problemsin the operation of the principle of direct and verbal trial in our countryand, through analysis of some cases, points out the encroachment on theimplementation of the principle of direct and verbal trial by theappearance of the witness in court, the existence of adjudicationcommission, the quality of the judge and the current situation ofnon-successive trialThe fifth part put forwards solutions to the tiollowinstitutionalization of the principle of direct and verbal trial in litigation.This includes the incorporation of the principle of direct and verbal trialinto the system of the basic principle of civil proceedings, theimprovement in the institution of the appearance of witness in court, thestrengthening of the institution of questioning and authentication ofevidence, the redefinition of the function of the adjudication commissionand the establishment of successive.