On The System Of The Civil Litigation Contract

The Civil Litigation Contract, as the product formed after theintroduction of the principle of freedom of contract into the CivilProcedure Law of adversary system, is a major breakthrough of“prohibition of arbitrary action”, which is a traditional concept of civillitigation. At present, in several major representative countries andregion of the two legal systems, a variety of civil litigation contractshave been legally provided for, at the same time, thanks to the deepeningtheoretical studies from the academia, the judges of these countries andregion also support for the parties to enter into some kinds of civillitigation contracts which are not clearly defined by the law. Practicehas proved that the emergence and development of the system of thecivil litigation contract, on one hand, has strengthened the autonomy ofthe parties in the process of resolving the civil disputes to improve thefairness of the lawsuits, on the other hand, it also has saved valuablejudicial resources to improve the efficiency of the lawsuits. Inmainland China, for various reasons, the1991Code of Civil Procedureprovides for only a handful of several civil litigation contracts. Theamendment of the1991Code of Civil Procedure in2007did not involvethis issue. Amendment of the Civil Procedure Law of People’sRepublic of China (draft, announced on October29,2011) has touchedon this issue, but it is still not the focus of attention by the legislators.Considering the fact that only a few scholars in mainland China’sacademia has researched the system of the civil litigation contract, therefore, the purpose of this paper is to improve our country’s system ofthe civil litigation contract.In addition to the introduction and conclusion, the body of thispaper is divided into five chapters. Specifically, Chapter I defines theconcept, nature and characteristics of the civil litigation contract. Here,the author points out that the civil litigation contract is reached betweenthe parties designed to produce the effect of the Civil Procedure Law,which by its nature should be a kind of civil litigation action. By thischapter, the author is able to lay the foundation for the later research inthis paper. Chapter II combs a variety of extra-territorial civil litigationcontracts according to the definition of the civil litigation contract andconducts its theoretical classification. Here, the author points out thatfrom prospective of the content, the civil litigation contract can bedivided into the litigation contract of entity, the litigation contract ofevidence and the litigation contract of procedure. By this chapter, theauthor is able to clarify our country’s existing civil ligation contracts.Chapter III discusses the legitimacy of the civil litigation contract,including its legal basis, system value and limits. Here, the authorpoints out that the two legal basis for the civil litigation contract are theprinciple of disposition and the principle of freedom of contract; thesystem value of the civil litigation contract lies mainly in its help to savethe litigation costs of the parties and the judicial resources of the court.By this chapter, the author is able to find out the root cause of restrictingthe development of our country’s system of the civil litigation contract.Chapter IV is of the effectiveness of the civil litigation contract,including its constitutive requirements, performance, defects andremedies. Here, the author points out that the constitutive requirementsof the civil litigation contract should distinguish between itsrequirements of establishment and entry into force; the responses to theparties’ violation of the effective civil litigation contract shall includeboth damages and fines for breach of contract. By this chapter, theauthor is able to bring forward legislative proposals to improve ourcountry’s system of the civil litigation contract. Chapter V is ofimproving our country’s system of the civil litigation contract. This chapter is the end-result of this paper and includes three sections,namely the legislative status quo, status evaluation and institutionalbuilding. Here, the author points out that there exist six kind of civillitigation contracts in our country’s legislation; comparatively, twomajor problems in our country’s current system of the civil litigationcontract are the lack of some types of civil litigation contracts and thatsome current provisions of civil litigation contracts are simple andcrude; constraints leading to the slow development of our country’ssystem of the civil litigation contracts are both from the legislators andthe parties. Finally, the author suggests that the existing provisions inour country’s legislation of the settlement agreement in civil procedureand the agreement of proof deadline should be improved and theagreement for not to appeal should also be recognized and regulated inour country’s legislation, meanwhile, our country’s existing laws andjudicial interpretations should specify the principle of good faith in civillitigation and the judge’s obligation of interpretation.