On The Principle Of Access To The Judicial Remedy

This thesis mainly argues that our civil litigation system should establish the principle of access to judicial remedy(hereinafter THE PRINCIPLE)as a fundamental principle,and its relevant rules and articles should be amended accordingly.THE PRINCIPLE,also known as Ubi Jus,Ibi Remedium in Latin words,where there is a right there is a remedy in English language,is a fundamental legal principle in modern countries ruled by law. As is known from jurisprudence,declaration of rights and remedies of rights constitute the full content of legal rights.THE PRINCIPLE is a ultimately guiding principle in the field of rights remedies,and a dominant rule in public remedy.Including the introduction and the conclusion,the thesis consists of 7 parts,totally has 60,000 words approximately.Part one is the introduction,which puts forward the subject,analyses the meanings and values of this study,introduces the current researches,and the methods and the framework of this thesis. This thesis will exerts an imperative influence upon public remedy, competent authority of civil procedure, lawsuit filing,and the relationship between adjudication and ADR,etc.,and will promote studies in these fields into a progressively higher level. THE PRINCIPLE prevails in countries and regions ruled by law. In the process of this study,the thesis will analyse the nature of civil justice and balance the interests,use comparative law as well as function-system analytical method.Part two analyses the background of the subject discussed in this thesis. Competent authority system of our civil procedure law mainly results in the lack of THE PRINCIPLE in our legal system.What's more, the power-oriented practice,along with the unreasonable lawsuit filing system of our civil procedure law,together causes the situation that it is difficult for people to file a lawsuit,and people have to resort to self help in rights remedies.Based on the analysis of competent authority system of civil procedure law in former Soviet Union and other socialist states,this part discusses the phenomena of difficulty in filing a lawsuit and self help.Part three is a comparative analysis of THE PRINCIPLE.Based on the materials of judicial remedies in UK,USA,Germany and Japan,from the perspective of historical and institutional view,it argues that THE PRINCIPLE is a universal principle in these countries,and a fundamental legal mechanism for protection of fundamental constitutional rights.In addition,this part introduces the radical transformation of the scope of civil jurisdiction in civil procedure of former Soviet Union by the Russian Federation.Part four researches the theoretical foundation of THE PRINCIPLE.Judicial power is a one for judging. It is the sufficient guarantees granted by judicial procedure that make the branch of justice a final dispute resulution organ.As well, THE PRINCIPLE is an important mechanism for actio protection.Part five focuses on the concept of THE PRINCIPLE.After reviewing the previous studies,this part uses literal interpretation and systematic interpretation to analyse the concept.Literal interpretation of THE PRINCIPLE should take into account the status and function of adjudication in the multiple conflict resolution systems.THE PRINCIPLE is equal to Ubi Jus,Ibi Remedium as a legal doctrine in common law tradition。Part six aims at establishing THE PRINCIPLE and improving our civil procedure law.Regarding competent authority system,it should chang its normal function to function under the multiple dispute resolution mechanismes, cater to the need of people when choosing among different dispute resolution processes.Lawsuit filing system should also be reformed through establishing complaint registration mechanism.When it comes to new rights remedies, interest of actions should be took into consideration for judicatory to determine the scope of civil jurisdiction.Part seven concludes.This part looks back upon the logical argumentation and viewpoints of this thesis.It is THE PRINCIPLE that connects disputes with judging,actio with adjudication,disputants with the court. THE PRINCIPLE is a fundamental legal mechanism for protecting actio and remedying legal rights.The establishment of THE PRINCIPLE should go along with the development of ruling by law,judicial reform,improvement of judicial authority and judicial ability,etc.