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Well-founded Denial Of Litigants In Civil Procedure

Posted on:2018-09-28Degree:MasterType:Thesis
Country:ChinaCandidate:H Y S LingFull Text:PDF
GTID:2346330515490260Subject:Procedural Law
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In the field of civil litigation,well-founded denial of the party without burden of proof is a response to the statement of fact of the other party.The well-founded denial is different from silence,ignorance statement,self-admission,and simple denial.On the one hand,the denial containing reasons candescription the fact of the case in the perspective which is different from the other side.On the other hand,well-founded denialcan contribute to litigation promotion,and release a little bit pressure of challenge betweencurrent judicial environment and efficiency of litigation.Meanwhile,well-founded denial canmaintain the interests of the court and protectthe interests of the parties.Our civil proceedings is inherited the continental law system.But compared withmature theories of countries and regions of continental lawsystem,ourtheories and legislation of civil procedure are slightly behindthese countries and regions.Most of our theories and legislation still have a long way to go.And minority of theories and legislation are still blank,and even do not have a systematic structure.The denial containing reasonsof litigants belongs to this class.The lack of legislation of civil procedure makes the denial containing reasonsshort oflawful basis in our country.Because of the absence of the obligation of truthfulness and the thin specific obligations,the denial containing reasons has some defects on theoretical basis.In addition,the absence of pretrial procedure and the arbitrary obligationof attending the trial of the parties both hamper the development of the denial containing reasons of litigants in the real world.Based on the consideration of litigation promotion,the well-founded denial in Germany and Japan has been studied in depthand even be a kind of obligation.With the influence of the theory,scholars who come from Taiwan realizethe essential that the specific extent of denial of the partywithout burden of proof has an influence on the process of civil proceedings.So there are some indication that indicate the denial containing reasons in theory and legislation in Taiwan.In the classical doctrine of adversary,there is no position of the denial containing reasons of litigants.However,the birth and development of the amended doctrine adversary provide a chance for it,and the principle of good faith provide a chance of development for it.Some modern theories of civil proceedings,such as the obligationof litigation promotion,the specific obligation and the obligation of truthfulness,make it a further development and improvement.In view of the meaning and function of the denial containing reasons of the parties,and learn from the experiences of German,Japan and Taiwan,our country should construct concrete and distinct legislation system of the well-founded denial of litigants.And,improve basis theories such as the obligation of truthfulness and the specific obligation and so on.At the same time,in order to implement the well-founded denial of the parties,our country should strengthen and regulate related supporting measures,including regulate theobligationof attending the trial of the parties and strengthenthe explanation right of the judge.Besides the introduction and conclusion,this essay consists of five parts:The first part :clarifying the meaning and functions of the well-founded denial of litigants.Step 1 is clearing definition and characteristics of the well-founded denial of the parties.Step 2 ismaking a distinguish between the denial containing reasons of litigantsandother concepts,and further revealing the connotation of well-founded denial.Step 3 is summarizing the role and significance of the well-founded denial.The secondpart:discussingin detail the dilemmasand reasons of the well-founded denial.Thispart analyzes straits mainly from three aspects of legislation,theoretical basis and related supporting measures.The third part:introducing the development of the well-founded denial of the parties in Germany,Japan and Taiwan.Based on the comparative analysis,our country can understand and grasp the knowledge of the theory of continental lawsystem and obtainsome theoretical experience,and further know about how to develop the denial containing reasons.The fourth part:further elaborating thetheoretical foundation of the well-founded denial.The well-founded denialhas a close relationship with the doctrine of adversary,the principle of good faith and the obligation of truthfulness and other modern theories in civil action.The deep understanding of thetheoretical foundation is very helpful fortheoretical protecting the well-founded denial.The fifth part,proposing a few suggestions to the specific application of the well-founded denial of litigants.Having a consideration of corresponding tothe dilemma conditions of the well-founded denial,our country should regulate the denial containing reasons from three aspects oflegislation,theory and relevant supporting methods,so as to promote litigation to the most.
Keywords/Search Tags:well-founded denial, statement of litigants, principle of good faith, litigation promotion, litigation delay
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