Fine In Theory Of Civil Lawsuit

In civil lawsuits, fines is refers to the people’s court of people with serious breach of the civil litigation to forced to pay a certain amount of money within a specified period of compulsory measures, applies to the trial of civil lawsuit and execute two stages, its nature should belong to the order. The civil procedure law of the People’s Republic of China on a trial basis since 1982, 2007 and 2012, are greatly improved when correction of the amount of civil litigation, and this change is not given with other law, the coordination between the serious deviation from the fines imposed on the properties of the order in the civil procedure law is not in conformity with the principle of equality handled in the behavior the same internal requirement. Especially the civil procedure law amended in 2012 to the maximum fines up to 50000 yuan for individuals, it is likely to strengthen the court for fine control. Fine decision will need to be approved by the dean for examination and approval at the same time, for the judge or the execution officer, dean of the examination and approval procedure complex, long cycle and other unfavorable factors, and the current judicial environment in case of people less awkward situation, this is likely to lead to the judge or the execution officer may produce as much as possible to reduce the use of fine psychological. Fines the existing provisions of the civil procedure law is too thick, not considering the judge in the face of all kinds of nuisance of confusion, as a result, the author suggest through detailed regulations and the relevant application guide and standardize the judges use fines. In this article, first of all, to summarize the concept and nature of fine, and introduced the outside of the related regulations, analyzes the reason of our country’s penalty appear afore-mentioned problems, the last on how to improve this situation puts forward the corresponding suggestion,.In addition to the introduction, this paper consists of four parts, the main content is as follows:The first part: the overview of penalty system in civil lawsuit. This part first introduces the concept of fine and the regulation, in commenting on the problems existing in the fine measures are briefly analyzed; From the perspective of the change course of civil procedure law of fines, it can be seen that the legislative efforts on penalties, but, just raise fines rather than deep analyze the relationship between the penalty purpose and applicable, led to the effect of the reform is not much to be desired. In addition, the author thinks that the nature of the civil case in court fines should be a kind of order, firstly introduces several representative theories about the properties of the fines, through the analysis and comparison of the various theories, combined with fine legislation and practice to determine the nature of the fines.The second part: the paper introduces the scope of the provisions of the relevant measures. Mainly including the United States, France and Germany and Japan, in the civil litigation law provisions about the penalty measures. Foreign system of law of fine design, with a fine regulation in our country, there is a big difference between abroad against the illegal fines apply generally no principled regulations, mostly in the legal text made more detailed provisions, be fined in accordance with the authority to make decision, a judge does not need to report to the dean of the examination and approval, at the same time abroad for fine relief procedure is more perfect. Through the comparative analysis of the related system with foreign penalty measures in how to perfect our country’s present legislation opened the train of thought, pointed out the direction, expands the prospects.The third part: analysis the situation of fine measures applicable in practice in our country, the survey found that the practice of the fine effect and legislators expect there is a big gap. In civil proceedings, the judge made a fine decision case is very few, this make the legislation is expected to be discounted. At the same time gives a detailed analysis of the causes of the gap, the main reason is embodied in two aspects: on the one hand, on the legislation in China, the fine is too thick, and this makes the judge when applicable fines can’t can depend on. On the other hand is required when the penalty decision, dean of the rules of examination and approval, make a fine program becomes very complex, leading to avoid trouble in the practice of psychology, a judge for the judge to undertake or perform, fine need to be approved by the dean this link is not reasonable, formalities of examination and approval procedures exist complex, defects such as cycle is long. And now the whole judicial system case people less pressure, obviously this approval process is not in conformity with the current judicial environment, Suggestions for correction, will make a fine decision to undertake the judge or the execution officer.The fourth part: the penalty system in our current legislation perfect Suggestions are put forward. China’s current system of fines or content in a coarsening, dean of the examination and approval of embarrassing situation, the author suggest through detailed provisions, dean shift control the present situation of the fine. It mainly includes the confirmation of fines to the inherent requirement of the principle of proportion, to fine the legislative purpose and application effect of the harmonious relationship between. Also fines to coordinated with other laws and regulations, make the whole legal system between echo each other at a distance; Second, clear the illegal fines apply, eliminate the judge or the execution officer faces confusion by applicable penalty measures; Again, finally, the relief procedure of fines should be perfected, the reform of the success is not achieved overnight, shall be conducted in stages, in terms of present legislation technology, can try to clear in the grievance procedure was fined person’s right of defense, make up for the deficiency of the current complaints procedure. With the improvement of legislative technology, can draw lessons from Japan and other foreign counterappeal procedure, made in the form of a ruling fines, and allow the parties to appeal.