Research On The Litigation Contract

During the later half of the 19th century, procedure law became independent from civil law as a separate legal branch. Litigation contract theory was then put put forward by authors. However, in the initial stage of developing basic theories of procedure law, litigation contract theory didn’t win widespread approval among scholars and instead, like many other legal concepts and systems, it was initially disapproved but was then gradually recognized. With the development of modern law, the legitimacy of litigation contracts was gradually recognized and confirmed through legislation. Litigation contract is a guarantee of jus disponendi for litigants in civil actions and the exercise of private law autonomy in the field of civil procedure. Litigation contract is civil substantive law and civil procedure law combined and connected in civil dispute settlements and embodies their common values and objectives. Litigation contract highlights the subjectivity of litigants in civil actions and maintains checks and balances between litigants and courts in civil litigations. In both Continental Law System and Anglo-American Law System, litigation contract substantially increases the efficiency of processing litigations, eases the pressure of handling cases in court, and makes the settlement of civil disputes more acceptable to all litigation parties. Although Chinese civil procedure law introduces several types of litigation contracts, it still needs further perfection due to the fact that it can’t meet practical needs to a certain extent.This paper mainly includes five parts:The first part is a summary of ligitation contract. In this part, the author makes definitions on the concept, features and categories of ligitation contract, and focuses the discussion on the components and efficiency of litigation contracts.The second part addresses the property and jurisprudence basis of litigation contracts. In this part, the author first analyzes various theories on the properties of litigation contracts and then redefines the properties through comparisons and analyses; at the same time, the author thinks that the jurisprudence basis of litigation contracts comprises three points-subjectivity of litigants in civil procedures, the exercise of the autonomy of will in civil litigations, and the checks and balances between jurisdiction and litigation rights.The third part examines the litigation contract system abroad. In this part, the author mainly introduces litigation contract and relevant theories under the continental law system including those exercised in Germany, France, Japan and Taiwan. Litigation contract system under the Anglo-American law system is also addressed by the author in this part, referring to the American and British litigation contract system. The above introduction is followed by an analysis of the similarities and differences of litigation contracts under these two law systems and the cause behind the similarities and differences. This part ends with a summary of the lessons that we could learn from foreign litigation contract systems for improvement of our own litigation contract system using analyses and comparisons.The fourth part makes an analysis of the litigation contract system in China based on two perspectives of legistation and practice. In this part, the author mainly analyzes the four types of existing litigation contracts in China, namely, the contractual jurisdiction,the evidentiary agreement, the program option contract and the pacification agreement. The author also indicates the dwawbacks and loopholes, existing problems in China’s litigation contract and the causes of these problems.The fifth part proposes the countermeasure and suggestions to deal with the above problems. The paper emphasizes to renew the civil action theory,to promote the transformation of the civil litigation system in China, to learn from foreign experience and to localize the system design. The types of the existing litigation contracts should be perfected in the system and rules to make it more operational in practice. As for the judical relief in litigation contract, the paper focuses on the remedy in litigation contract from aspects of default and defect. At last, in the view of perfecting the assistant institution of litigation contract, the author suggests to establish a compulsory system of attorney’s procuration in the civil action to make up for the the defects in the use of litigation contract ability for parties in a civil lawsuit.