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Studies On Pretrial Diversion Problem Of Civil Cases

Posted on:2018-04-20Degree:MasterType:Thesis
Country:ChinaCandidate:Q SongFull Text:PDF
GTID:2336330515482707Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
With the establishment and implementation of case-filing register system and judge personnel system,two levels of courts,especially the grassroots people's court is facing heavy trial tasks,and the conflicts that “cases are more but judges are less” are intensifying day by day.In order to solve this problem,the legislative and judicial practice pays much attention to the construction of pretrial procedure system and pre-trial diversion mechanism of civil cases.At present,the functional deficiency of pretrial procedure in China is serious,so it cannot effectively play a role of dispute resolution and case filter.Strictly speaking,China's civil action only has a “pretrial preparation” stage,and the pretrial procedure does not exist independently as an important system.The importance and necessity of constructing pretrial diversion system of civil cases is self-evident.Only scientific pretrial diversion mechanism of civil cases can effectively relieve China's realistic plight of “more cases and less judges”,reasonably optimize the allocation of judicial resources,realize the balance between justice and efficiency,and maximally guarantee the legitimate rights and interests of the parties.Combining with the characteristics and status of China's civil lawsuit system,this thesis illustrated the present situation of pre-trial diversion system of civil cases in China.As much attention is paid to the legislation,each court in judicial practice is also constantly exploring and trying effective solutions.We shall establish and implement the pretrial diversion mechanism of civil cases,establish a pretrial diversion philosophy of civil cases in the pre-trial phase,adhere to the basic principles of civil cases' pretrial diversion,and implement the corresponding supporting systems.Under the circumstance of clearly understanding basic concepts and theoretic mechanism of civil cases' pretrial diversion system,it explores more reasonable and scientific mechanism framework design and operation mechanism,analyzes the problems arising from the operation process,and puts forward the improvement approaches.Then from the perspective of “should”,it demonstrates the following problems: How does it combine with the existing civil litigation system to set up diversion body,diversion standard and diversion process? What roles do the courts,parties and lawyers play in the operation of the mechanism? What rights should they have and what obligations should they undertake? From the perspective of “in fact”,how does the actual running status of civil cases' pretrial diversion mechanism go on? Whether can it achieve the preset purpose? What are the main problems and why is the mechanism operation impeded? We should think about the above problems.On the other hand,reshaping the procedure differentiation structure requires to conduct a different functional orientation for each procedure,for example,the positioning of small claims procedures and facile civil procedural process is more a guidance and command function on the parties.in the case of fully respecting the parties' rights to choose civil procedures,it is more about the fact that courts order the parties to timely exercise their litigation rights and perform legal obligations,otherwise the parties shall undertake corresponding adverse consequences of the procedures.It requests the parties to cooperate with the court to complete the lawsuit,so to improve judicial efficiency and save judicial resources,change the past customary practice of only asking judges to complete the judicial work in a shorter period of time,and form a virtuous circle.Completing civil cases' pretrial diversion system should make full use of social resources,use diversified dispute settlement mechanism,conciliate agreements' judicial confirmation process to resolve disputes timely and effectively;It can expand the variety and application scope of non-lawsuit procedures,activate existing systems,and avoid non-lawsuit procedures from not playing their roles;It can innovate diversified service mode,and practically solve the difficulties of service mode by making good use of network and electronic ways.Only when each link supports each other and each system coordinates each other can effectively solve the problems.
Keywords/Search Tags:Pre-trial diversion mechanism, Diversion of complicated and simple civil cases, Alternative Dispute Resolution
PDF Full Text Request
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