A Probe Into The Function Of Civil Pretrial Procedure

With the development of Chinese civil justice reform, the theorists and practitioners are studying on civil pretrial procedure deeply. The function of our civil pretrial procedure is to prepare for the trial. The functions of other countries’civil pretrial procedure are to arrange the point of dispute and fix evidence, to promote reconciliation and to provide ways to end the case without a trial. There are big differences between China and other countries. Therefore, the understanding of the function of our civil pretrial procedure is not deep; it is not conducive to the improvement of our civil pretrial procedure. Based on the analysis of the functions of the civil pretrial procedure, it can lay a solid theoretical foundation for the reform of the civil pretrial procedure.The article found that the study on civil pretrial procedure is more about its specific content by reading relevant literature, there is very little attention on the function of civil pretrial procedure. The author compared the civil pretrial procedure of British and United States which belong to Anglo-American Legal System with that of Germany and Japan which belong to Continental Legal System and analyze the gaps of our civil pretrial procedure with theirs’; extract the experience and system design which can be employed in our civil pretrial procedure; analyze the functions of our civil pretrial procedure to provide support to our civil pretrial procedure.In first part, the article firstly expounded the legal basis of civil pretrial procedure, and analyzed the function of civil pretrial procedure which should have as a legal process. The author summed up that the ideal functions of civil pretrial procedure are to exchange evidence, arrange point of dispute, and provide a way to end the case without trial.In second part, the article combined with the status quo of our civil pretrial procedure, and reflected its function. The article found that the civil pretrial procedure is not an independent procedure, it lack participation of the parties, the pretrial preparation is not full realized, and the procedure shunt value have not been realized.In third part, the article examined and evaluated the theory and system of representative countries’civil pretrial procedure which belong to Anglo-American Legal System or Continental Legal System. Then, the article refined the theory and systems available for reference by China, including the arranging point of dispute, the exchange of evidence with the loss of the right effect.In fourth part, also the main part of the article is about the functions improvement and expansion of our civil pretrial procedure. Under the guidance of the value of procedure divergence, the parties’participation in the proceedings and litigation economic, the article argued that the functions of civil pretrial procedure can be improved from two aspects. First, give full play to the pretrial preparation, through the improvement of our evidence collection and exchange system and the civil point of dispute arranging system, prompting the case to reach the suitable trial state to promote the lawsuit. Second, the improvement of the pretrial mediation system, through the improvement of the principle of pretrial mediation, the scope of the pretrial mediation and the structure of pretrial mediation to prompt the case to be resolved in the civil pretrial procedures. At the same time, the article argues that the function of the civil pretrial procedure to resolve disputes independently should be expanded in order to promote the improvement of civil pretrial procedure. In this article, the author studies the status of withdrawal system and its defects, and put forward comprehensive proposals.