A Study On The Interim Judgment System

The system of interim judgment origins and develops from Germany. After that, Japan and Taiwan area of China also adopt this system. It is an important system in civil law countries and regions to strengthen the judge's dominant role in program and improve the efficiency of lawsuit. In the process of the trial, the judge likely need to judge some matters before the final judgment. In this case, the judge can use interim judgment to process various issues in logical order, and to judge items which satisfy judgment conditions, thereby reducing the burden and accelerating judgment process. Accordingly, the interim judgment helps to quickly resolve the dispute among lawsuit and achieve a fair settlement in complex cases.Besides preface and epilogue, this article is divided into five parts:The first part:the overview of the interim judgment. This part states basic theory of the interim judgment and the concept, the object and the related system analysis are also analyzed. The interim judgment is to solve some issues involved in the process of trial in advance, and be prepared to make the final judgment. It is produced in litigation by the referee, and it has both connection and difference with confirmation judgment, interlocutory confirmation judgment, partial judgment. The object of the interim judgment is precondition issues, that is, the judge must decide the premise of the referee before the parties request particulars.The second part:the problems and causes of precondition issues' identified mode of our civil procedure. This part is in close contact with our civil judicial practice, and analyzes the problems of precondition issues' identified mode of our civil procedure. According to the principles of the division of the civil referee, the procedural precondition issues can be applied to the scope of the ruling. The substantive precondition matters usually are left to identify in the final judgment as the reasons of the judgment. This identified mode may cause that the parties can not choose the claims and evidence in favor of their own position, and also brings about the problems of delays in the litigation and the waste of the procedure. Meanwhile, according to the 35 of “Supreme People's Court Provisions relating to Evidence in Civil Procedure”, the system of intermediate confirmation is similar with the interim judgment system, but the system of intermediate confirmation has problems of a narrow scope, lack of basic instrument forms, and uncertainty of this judicial determination's effect. Finally, there are two system reasons behind the problems that the type of the judgment is single and the hearing of dispute points is lack of a certain logical sequence.The third part:the necessity of the interim judgment system absorbed in our country. There are two voices whether it is necessary to absorb the interim judgment system or against it in academia. First, sort out the opponents' points of view, and demonstrate the views that the interim judgment absorbed in our country will lead to increase litigation costs and its function repeats with intermediate confirmation are not established. In fact, precondition matters need to be identified and described in the final judgment originally. So the appliance of the interim judgment is only ahead of time. Meanwhile, the interim judgment system differs from the intermediate confirmation system, and it can overcome the problems arising out of the intermediate confirmation system. Secondly, from the perspective of independent value of the interim judgment, this part demonstrates the necessity of the interim judgment system absorbed in our country. The interim judgment has value of focused and efficient trial, saving judicial resources, the promotion of disclosure of discretionary evidence, which not only improves the efficiency of the proceedings, but also helps to promote the quality of civil judges and judicial credibility.The fourth part:the comparative analysis of the interim judgment in civil law countries and regions. This part mainly analyzes the object, the effect, the relief ways of the interim judgment in Germany, Japan and Taiwan area of China comparatively. First, there are differences in the scope of the interim judgment in these countries and regions. The scope of Germany is widest, including substantive and procedural matters. Japan interim judgment mainly applies to entity issues and a small number of procedural matters. Taiwan area of China interim judgment applies to only entity matters. Secondly, Germany, Japan and Taiwan area of China are consistent with the provisions of the effect of the interim judgment, that is, the interim judgment has no res judicata, by which the making of the final judgment is bound. Finally, on the aspect of the relief of the interim judgment, Germany distinguishes different categories of the interim judgment to allow the parties to appeal the interim judgment independently or appeal that with the final judgment. In Japan and Taiwan area of China, the legislation provides the parties can not appeal against the interim judgment independently, but can submit it to a superior court with the final judgment.The fifth part:the assumptions of constructing the interim judgment system in our country. This part combines with the theory and practice of justice in our country, and puts forward preliminary idea of constructing the interim judgment system from aspects of the object, starting, effect and relief ways of it. First, considering the factor of retaining substantive issues applied to judgment, the objects of he interim judgment system include the independent method of attack and defense and the reasons for the claim. Secondly, in order to avoid the judge abusing or applying improperly the interim judgment, the legislation may distinguish legal interim judgment and freewill interim judgment under the discretion of the judge. In most cases, the starting of the interim judgment belongs to the judge litigation commanding problem, and it is at the discretion of the judge. Again, the interim judgment does not have res judicata. In terms of limiting the decision to withdraw, the interim judgment can no be revocable. In terms of a general power of the decision content, the interim judgment has the restriction power in the judicial proceedings, and the judge must make the final judgment under the text of the interim judgment. In other judicial proceedings, the interim judgment has factual evidential effect after the determinate final judgment. Finally, the parties can only appeal the interim judgment with the final judgment to get relief in our country.