Study On The System Of The Civil Litigation Contract

The civil litigation contract refers to the agreement whereby the parties, either directly or indirectly, convene to produce a certain effect on the course of an ongoing or future proceeding. The purpose of the civil litigation is to resolve private disputes, which contains the spirits of party autonomy. Under this spirit, the parties have freedom to dispose not only the substantial benefits but also the procedural benefits. As the transformation of the society, the freedom of contract and autonomy of private law have been the basic demands of the modern society. Thus, the concept of the civil litigation contract highlights the positive roles of the parties in the litigation which accords with the development of the market economy. However, China has applied the functions and powers doctrine lawsuit mode for a long time in which the parties are severe lack of leading ability during the litigation. Moreover, the social relations and interest conflicts are getting more complicated. A large number of civil and commercial disputes rush into the court, which significantly increases the judicial cost, wastes legal resources, and impedes the normal litigation activities of the judicatory organs. Hence, there comes the system of the civil litigation contract that has positive effects on the dispute resolution in two aspects. On one hand, it reduces the stress of the court to improve the efficiency of lawsuit, on the other hand it enhances the awareness of self-regulation of the parties. However, in China, the civil litigation contract system has not yet been established. There are lots of problems remained to be solved in both theory and practice. Therefore, this paper aims to raise some particle suggestions on establishing the system of civil litigation contract in China by conducting a study of advanced experiences of foreign countries and comparing them with the situations of our country.The main body of this paper has five chapters.Chapter One – This part introduces the definition, legal nature and background of the civil litigation contract which lay the foundation of the later discussion. In my opinion, there should be a basic line to define the legal nature. The civil litigation contract would be action at law under the civil procedural law. On the contrary, if there is no regulation about the civil litigation contract, we should judge it in terms of the content of the parties’ agreement.Chapter Two-This part analyzes the legitimacy of the civil litigation system. The author points out that it includes three aspects that the legal basis, value and principles.Chapter There-In this part, I compare the system of civil litigation contract in the two legal systems. I choose the classical ones which stipulated by each country’s law, point out the similarities and differences in order to be helpful to the contraction of this system in China.Chapter Four-This part is mainly about the litigation contract in our civil procedure law and judicial practice. According to the analysis, I clearly show the problems and try to throw light upon them.Chapter Five-I will talk about the construction of the civil litigation system from the macroscopic and microscopic aspects. From the macroscopic perspective, the theory of contract should set up as well as the principles of voluntary, honesty and fair. From the microscopic perspective, I insist that the system should be built by stages.