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Study On The Debate Principle In Civil Procedure

Posted on:2012-09-07Degree:MasterType:Thesis
Country:ChinaCandidate:L FangFull Text:PDF
GTID:2296330371995610Subject:Legal theory
Abstract/Summary:PDF Full Text Request
Debate principle is a basic principle of the Civil Procedure Law which runs through the whole civil lawsuit. The basic meaning of it is that under the auspices of the People’s Court, litigants have the right to present their ideas or reasons and do some Refute and defense each other about the facts of the case and controversy, in order to safeguard legitimates’ rights and interests.Debate principle is an important procedural right of the litigant. The materials formed from the litigants’ debate should be the basis of the court decision. The scope that the litigants exercise the debate right can be either the procedure aspect or the physical aspect. Its form can be either oral arguments or written expressions. The debate right running through the whole process of the proceedings, in addition to special procedures, like the procedure in the first instance, the second instance and the trial supervision procedure, should implement the principles of debate. The forms of debate include denial, defense, counterclaim, and so on. Debate can be concerned directly by the parties; it can also appoint agents. Finally, in the process of the proceedings the People’s Court shall guarantee the parties to fully exercise the right of debate.The purpose of the debate principle is to keep the civil trial true. In order to arrive at it, the court empowers the initiative to the litigant to gather the materials that the court used to make decisions and divides extend of litigants’ and judges’ rights. However, in our country’s judicial practice, debate principle is not implemented well; litigants’ debating right is also restricted irrationally. In practice, judges’ behavior can be restricted by the debate content? The judge’s decision doesn’t depend on the litigant’s debate, which leads to the litigants not want to participate in debates. The judge brings in a verdict on the basis of the materials that don’t debated by the court. Does that belong to written judgment? In what extend, the last decision of the court is restricted by litigant’s debate? All of these, the principle reason is the inadequacy existing in the judicial legislation. In this paper, the inadequacy existing in Chinese Civil Procedure’s debate principle is studied by comparing and learning the debate principle of the western two important laws. At the same time, I also give some advice to the perfection of civil litigation debate of our country.This paper is divided into five parts. Set about the pure theory, part1elaborates the origin, concept, function and the existing basis of the debate principle. Part2is the comparative study of the principles. Firstly, this paper introduces the related legislation system rules of the debate principle in civil law system countries; then summarizes according to the related rules of Anglo-American law system countries; lastly, does a comparison and reference. Part3is about the current legislation situation analysis of debate principle of civil action; the first quarter elaborates the origin of the debate principle; the second quarter is the legislation methods; the third quarter is legislation contents. Part4is about the current judicial situation analysis of debate principle of civil action; mainly analyzed from the aspects of pretrial preparative procedure and trial stage; finally, points out its rationality and inadequacy. The fifth part is the center part which gives some advice to perfect the debate principle of our country mainly from specific system construction and perfect relevant procedure.
Keywords/Search Tags:Civil Procedure, Debate principle, Interpretation system, Authority ofInquiry, Open heart certificate
PDF Full Text Request
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