The Specific Obligations Of The Parties In The Perspective Of Litigation Promotion

Doctrine of adversary is the unshakable foundation and theme of civil litigation in continental law system for hundred years. As the core principle of the doctrine of adversary, the burden of claims puts forward specific requirements on allegation of fact. The specific obligations of the parties grows out of doctrine of adversary. Because of its relationship with the parties’ allegation of fact in the attack and defense system, it inevitability collisions out some sparks with the theories of litigation object determining and principle of litigation certainty. Take litigation promotion as a starting point, the specific obligations of the parties can help improve the efficiency of court litigation, guiding the parties’ behavior, guarantee the legitimate rights of other participants in the proceedings and so on, satisfied the requirement of central judgment and litigation promotion to a certain extent. Our civil procedure legislation and theory are the import of continental law system, after repeated changes, though the new civil procedure law reflects the specific obligations of the parties, but still has many defects on the systematic constructing. The high requirements for prosecution of civil action makes the litigation rights of the parties have not been earnestly safeguard, the ignore of claim responsibility also makes the specific obligations of the parties in the debate process still blank, the limited evidence collection methods and the lack of pretrial procedure further violate the proof right and other interests of parties in the litigation. In addition, the fuzzy classification of the specific obligations of the parties violates the parties’ substantive justice. The specific obligations of the parties originated in Germany, then Japanese academic circles introduced and deepened the research, under the influence of Germany and Japan, scholars in Taiwan also realized its great impact on the civil litigation proceedings. Although common law system and continental legal system belong to two paths on the litigation structure and concept of trial, but based on litigation promotion, it also reflects the specific obligations of the parties in some trace. The specific obligations of the parties originated from classical doctrine of adversary, developed in the modified doctrine of adversary, finality maturated by obligation of truthfulness, obligation of litigation promotion and other modern civil litigation theories. The specific obligations of the parties is rich in content, it three-dimensionally presented in the program with the development of litigation. In terms of its applicable conditions and degree of boundary, it can be detailed elaboration to the plaintiff sues phase of the facts, the defense stage of facts, the dispute of the parties claim of facts, and the facts in proves four types of application. Learn from the civil law countries and regions’ experience system, we should build a specific obligations legislation system of clear boundary, correctly understand basic theory of prosecution and burden of claims, at the same time, strengthening the parties’ power of evidence collection, building the substantial pre-trial preparation procedure, finally through the exercise the interpretation obligation of the judge, maintain the entity and the procedural rights of the parties better.This article is divided into six parts:In the first part, the author organizes the connotation and function of the specific obligations of the parties. Firstly, the author summaries the understanding of the specific obligations of the parties, and concludes the definition of this article. Secondly, the author analyses the differences between the specific obligations of the parties and other related theories, clears the scope of its functions. Finally, the author illustrates the function of the specific obligations of the parties, manifests the importance of the theory.In the second part, the author analyses the present situation of the specific obligations of the parties in our country. On the basis of the introduction, the author deeply analysis the existing problems and causes.In the third part, the author introduces the development status of the specific obligations of the parties outside. Through the introduction of the theory and legislation, the author tries to provide some inspiration for the perfection of the specific obligations of the parties in China.In the fourth part, the author expounds the design principle of the specific obligations of the parties. The specific obligations of the parties bases on doctrine of adversary、obligation of truthfulness 、obligation of litigation promotion and so on. Only master the principle behind the system can grasp the essence of the problem.In the fifth part, the author analyzes the different types of the specific obligations of the parties. Adopting different criteria for each type to match the purpose of the system design.In the sixth part, the author puts forward some own proposals for the establishment and improvement of the specific obligations of the parties. In order to maximize the function of litigation promotion, We should start from the legislation、 theory and supporting system, based on the experience from continental law system countries, improve the system of our county. Though the Advices are not mature, but still trying to achieve certain effect.