The Discussion On The System Of Civil Trail By Default

As one of the important system in civil procedure law, the system of civil trial by default can be traced back to Roman Law period, and in its long development process, it formed two basic modes:the default mode and the ex-prate debate judgment mode. The existence of the system of civil trail by default has a profound legal theoretical basis. It has closely correlations with the procedural justice,the efficiency of lawsuit, the debate socialist and the doctrine of disposition. Based on the basic conditions, countries in different periods all have stipulated it as a independent procedure in their civil procedure laws, just as the Germany and France of Civil Law system as well as Egland and Amercia of Common Law system. As the typical representatives of two legal systems, the system of civil trail by default in these countries both have differents and similars. Our country also has relevant regulations of the system of civil trail by default, and in the long development process it formed its own characteristics. However, due to the long-term impact of authority socialist litigation mode, the system of our country has many serious defects. For instance, the articles are to simple and abstract in legislation, which result in poor operation in practice. At the same time,defects in legislation lead the disadvantages of judical. For example, no matter judge or not the judge will be accused in handling process; Some judges errorly seem the trail by default as a measures to punish the absent parties. These defects seriously hinder the functions of the trial by default, reforms are immient.Of course, reform these entrenched ideas and systems needs a systematic and gradual process. First of all, we must change the original guidance in the legislation, only set correct guiding ideology can establish reasonable specific institutions; Second, we should choose basic mode suit our country, not copy the western countries blindly; Finally, we should construct and perfect the specific system based on the national conditions. However, "Way streched endless ahead, we must insist efforts unremitting", to reform and perfect our system of trial by default, much still remains to be doen. So the author write this article based on collecting domestic and international data, which can provide a useful thought and reference for the reforming of our country's system of trail by default.