Study On Dissimilation And Rebuilding Of The Rules Of Reply In China

The two ideals of litigation of “finding the truth” and “promoting legal proceedings” and the wrestling and balance of “equity” and “efficiency” carried thereby respectively have long influenced the reform trend of China’s Civil Procedure Law in a profound manner. China’s Civil Procedure Law was substantially amended in 2012 for the purpose of realizing the goal of promoting legal proceedings and finding the truth by constructing the pattern of issues sort-out and concentrated trials. On the one hand, the principle of good faith and evidence disqualification system are established. On the other hand, the pretrial preparation procedure is perfected so that judges and the parties involved can know about the particulars of the case and identify issues as soon as possible. Nonetheless, the rules of reply brief which is closely associated with evidence system are not perfect enough. The current legislation lacks regulations on the exercise of the right of reply by the defendant. In addition, the obscure nature of the defendant’s submitting of reply brief results in the fact that the said provision becomes a mere formality and that the parties involved become negligent in exercising their right of action or delay the litigation on purpose. Besides, it also prevents the evidence disqualification system and pretrial preparation procedure from promoting the play of the role of litigation concentration.From the perspective of comparative law, due to the differences in legal traditions and the trial structure of civil procedure, the specific rules and development patterns between civil law countries and common law countries are also different. In terms of the rules of reply brief, such mechanisms as disqualification sanction and default judgment have been established to facilitate the timely reply by the defendant. In China, how to perfect the rules of reply brief has always been actively explored in the theoretical circle. As a result of the complicated situation of civil procedure during China’s social transformation period, different theoretical dimensions have been generated. By referring to the development experience of various countries and the existing research achievements in the theoretical circle, the author hopes to restore the rules of reply brief to their original connotation and to seek a proper route for perfecting the rules of reply brief in the ordinary procedure of first instance and realizing benign interaction with relevant systems.The main body of the paper is composed of four chapters.Chapter One presents the questions. This chapter makes clear the purpose from the very beginning. Section One introduces the basic legal principles of reply brief and sets forth the basic connotation of reply brief and the significance of submitting reply brief. Section Two analyzes and evaluates the current rules of reply brief in China and illustrates the impact and influence caused by the defendant’s failure to submit reply brief on the value realization of civil procedure and on the relevant systems. Section Three analyzes the Civil Procedure Law in terms of the behavioral nature of “the defendant submitting reply brief” and interprets the due nature of right of the behavior of submitting reply brief under the judicial context of China.Chapter Two is about the relevant instances of legislation from the perspective of comparative law. This chapter analyzes the rules of reply brief developed on different soils by combining the legal traditions and structure of civil procedure of different countries. After that, by comparing the differences in structure and principle of the rules of reply brief between civil law countries and common law countries, it seeks the part which can be used for reference by China’s civil procedure on the basis of common ground.Chapter Three is about the considerations for rebuilding the rules of reply brief. This chapter further digs into the conclusions in terms of legislation and system which are reached in Chapter Two. The regulations on the exercise of the right of reply manifest the wrestling and balance of value and play a role in ensuring the realization of the right of action. This chapter plans to discuss about the legal basis of their existence and development from three aspects, namely the right of claim for trial at an appropriate time, principle of good faith, and judicial economy and value of justice. Section Two will probe into the practical significance and reasonable countermeasures for rebuilding the rules of reply brief under the current judicial and social background: under the reform trend of China’s civil procedure of perfecting the pattern of issues sort-out and concentrated trials, whether the stricter rules of reply brief can realize benign interaction with relevant systems, whether they can play their due role in the civil procedure pattern which weakens the power of judges and strengthens the function of the parties involved as well as at different litigation stages, and how to realize the foregoing.Chapter Four is about the conception of rebuilding the rules of reply brief. Section One introduces the overall design of the rules of reply brief, including the contents of reply brief, the time of submission, legal consequences, etc. Section Two presents the detailed construction of disqualification sanction, including the initiation of disqualification sanction, elements of disqualification review, eliminations of disqualification sanction, and the relief of disqualification sanction. Section Three puts forward legislative suggestions. On the basis of the above, it gives advice on legislative modification in terms of the construction of the rules of reply brief, restriction mechanism and relevant system adjustments.