On Civil Litigation Avoidance System

Litigation avoidance system in civil procedure is the legal system that when judges or other person have been involved in the civil cases with interest relationships, which may affect the fair treatment of the case, judges should avoid or withdraw from the trial. It is a system design which is the result of the pursuit of justice by people, it includes rich theoretical essences. The judges who may have a certain relationship with the person who will be judged will be excluded from the case, in which case the system guarantees a fair trial.The first part of the article reviews the history of litigation avoidance system in civil procedure, it also sums up the historical experience of the system and inadequate. All we want is to point out the legislative concept and technology of litigation avoidance system of ancient China. We can absorb the experience from alternative and critical way.The second part of the article analysis the theoretical foundation and legal value of the litigation avoidance system. First, "A person can not become judges of their own cases." is the first demand of law of natural justice. Judicial officials in the case of the judicial process, we must ensure that there's no interests concerns with the case and without any form of partiality. Second, procedural justice and entities justice are two fundamental forms of basic values in the legal system For entities justice, it is difficult to predict whether or not the result is legitimate before the end of the procedure. The legitimacy of its own proceedings can be realized by improving intrinsic values of their own procedures, without other factors outside the procedures.The third part of the article is our reflection on the litigation avoidance system in civil procedure. First, the article describes the legislation of litigation avoidance system from five aspects. On the basis of it ,we get three legislative defects: The existence of loopholes in the law, the irrational system design, technical legislative imperfections. The implementation of the system can not be satisfied with the people during the judicial practice. I believe that not only the legislative system itself, China has lack of procedural fairness and deviate from the concept for a long time, as well as community relations, the status of human social cause of this situation.The first thing of solving the problem is to find out the problem. The fourth part of the article is about proposals of improving our country's litigation avoidance of civil procedure. Assessing of the advanced experience of foreign countries is an important source to improve the national legislation, referencing the superior experience was also the one source of civilization. However, this reference must be improved. Both draw on foreign legislation or legislation on China's ancient heritage, we must combine it with the current reality. In this paper, the avoidance system should be included the principle of "facilitating the parties to exercise right of action" and "the people's right to appeal and checks and balances", "see the judge as rational economic man", Only in the three principles of the design of specific guidelines on the rules of procedure, we can achieve fairness and justice. The author thought that expand the current scope of the litigation avoidance system Secondly, the re-construction of the reasons of avoidance is the unavoidable key to the efficient functioning of the system Third, the establishment of fair and reasonable procedures for avoiding action on the protection of rights of the parties is also essential. Finally, set a strict liability system can truly avoid the implementation of the system for escorting.Looking at China's existing civil avoidance system's general framework, the author concludes that the civil avoidance system's design ideas focused on the courts and management of the facilities, the legislative rudimentary technology is crude. It is the miniature of the entire transition period of China's civil justice system and the manifestation of symptoms and pathology. So, changing the entire system of civil litigation is the most fundamental ideas.