The Improvement Judgment By Civil Law Default System In China

In view of the fact that default judgment is an unusual and seldom variety of procedures, it is aneffective access to analyze the cases in judicial practice so as to improve the legal system thereof in China.It is quite complicated to find a clear research method to study default judgment since the phenomenon ofabsences from the civil trials has been a commonplace, therefore to categorize the civil cases judged bydefault through certain criterions such as time, loci, focus and persons or parties concerned perhaps wouldbe good for finding the perplexities, confusions and clues to sum up characterizations thereto. From theperspective of time, if the point of time when a party of a litigation is absent in a trial for any reason istaken as the boundary, default judgment can be differed from absence from start to the end to withdrawalwithout permission. However, the way of classification mentioned-above is not able to satisfy all the casesof default judgment in judicial practice because the reasons why the parties concerned absent in trial arediverse. Unlike withdrawal without permission, if an absent litigant’s whereabouts was unknown, he or shewould miss not only the final pronounce but also the court investigation and even the advanced procedures.The aspects of loci is largely about that the parties concerned refuse to make him or herself appear in thedesignated court and the focus is mainly about that the number of the civil actions judged by default havebeen increased in recent years. The tendency can be confirmed by the randomly sampled data from severalprovinces around this country that the proportion of the cases judged by default is getting larger in all thecivil cases and most of them concentrate in credit dodging and divorce suits. The reasons why defaultjudgment lay mostly in the two case-types are because that the parties concerned weren’t informed timelyby the court’s service of publicity or processing in credit evading suits and that the parties concernedreluctant to appear in court for the divorce litigations. With respect to the persons involved, the courts andthe parties concerned are of the two important factors. On the part of the courts, whereas that the clear factsand sufficiency of evidence formed the basic requirement for verdict hold by most of the judges asdominant idea, they would sacrifice lawsuit efficiency rather than start a procedure of default judgment incase too many appeals and remitting, moreover, the reasons for absence are different. Many absences are ofmala intention, while others are of bona fide, on the other word, owing to force de majeure, which matters a lot to the litigants’ right for seeking remedies, therefore in a great number of countries the rights of theabsent parties concerned are particularly prescribed in the related procedural laws where the absence is dueto failing of service of processing or force de majeure, which should be taken into serious consideration bychina’s legislation too.A great number of questions have been posed through classifying and analyzing the cases judged indefault. For example, where the case shall be judged by default and where it shall be adjourned; in whichcircumstances the absence of the parties concerned can be ignored, thus the case shall be trialed accordingto the general procedures, and in which circumstances the plaintiff’s absence can be taken as recalling ofthe lawsuit; is there any difference between declining to appear in the court and withdrawal withoutpermission; who has the right to enter a motion of default judgment, and the norms according to which thecourt make the adjudication thereof. As the matter of fact, because of china’s imperfect legal system onjudgment in default, all the questions mentioned-above are not groundless worries, there are no applicableprocedures for the courts on the one hand, the litigants, on the other, tend to seek non-legal remedies likepetitions to administrative authorities where there is lack of remedies from the court of law.In order to tackle the problems, establishing applicable procedures for the cases ought to be judged bydefault should be taken as the paramount consideration. More specifically, the court is prohibited to launcha procedure of default judgment until the absent party concerned informed by the service of process, whilethe absent party has to admit the verdict under the procedure thereof unless assumed the burden of proofthat he or she is positive to the action and, in the other word, that his or her absence is under a properpretext. The rights to enter a motion of default judgment can only be given to the party appeared in thecourt, nevertheless the occasion for entering the procedure thereof shall be decided by the presiding judgeand he or she has the obligation to impart the appeared party that the effectiveness and procedures possiblytriggered thereby. When the court decide to start a procedure of default judgment, the judge has to reviewthe case in whole so that to ensure its validation and qualification thereon, on the one hand, if there is anyproper reason for absence, the party concerned shall be rightful to the chance for seeking remedies, namelyto revoke the verdict, on the other, if the reason delivered was not approved by the court, the partyconcerned has the right to appeal for setting aside the illegal decision made by the court of first instance.