Study Of The Right To A Timely Trial In Civil Procedure

The right to a timely trial is a basic procedural right enjoyed by the parties in civil litigation,as well as the embodiment of the concept of human rights protection in the Constitution,which aims to protect the parties' interests of the litigation time and the main role in the lawsuit.Due to the lack of relevant theoretical research and the influence of state-oriented thought,there is no clear provision for the right in our Constitution,only with some protecting regulations scattered in the Civil Procedure Law,those lack of legislation leads to the challenge for the timely trial in practice and the realization of procedural and substantive interests of the parties.Based on the present legislation and practical dilemma of the right to a timely trail in China,combing the basic theory,and on the basis of examining the guarantee system and remedy system in an international perspective,this article would put forward the legislative suggestions and specific system design for the future establishment of the right in China.The full text is divided into four parts:The first part: Investigation on the present situation of timely trail in China.From the perspective of legislation,as our country does not establish this right,the application period of the right and the criteria for the timely trail lack legal basis.However,the efficiency-oriented formulation of the protecting provisions aims at standardizing the court's trail action without consideration of the right itself,and fails to regulate the litigation delay or improper arrangement in the form of parties' right,deviating from the purpose of procedural guarantee.In practice,under the pressure of surge in cases,the guarantee system has not played its due function: the time limit system of civil procedure has been alienated,and the phenomenon in hidden overtime hearing of court has been outstanding;the litigant lacks effective remedies for delay in litigation due to the absence of the remedy system.The second part: The jurisprudential analysis of the right to a timely trial.Based on the litigants' main role in the lawsuit,the parties have the right to ask the case to be heard in a timely and appropriate manner,which in order to prevent damage to the interests of the parties as a result of the delay or improper use of the proceeding.It is a constitutional and procedural basic right to ensure the timely conduct of proceedings and to protect the interests of the parties with characteristics of positive right.It is rooted in the principle of procedural subjectivity and the concept of the rule of law,and with the value of realizing the efficiency of lawsuit and guaranteeing the justice.The third part: The right to a timely trail in an international perspective.Emerging from the Great Britain Charter in 1215,the right has been clearly established in many countries and international organizations as a basic human right with the rise of human rights movement after the Second World War.As for the guarantee system,the European Court of Human Right(ECHR)has enriched the connotation of the right,perfected the rules of the guarantee and relief measures with guiding effects on the contracting States.Influenced by the case law of the ECHR and the principle of the rule of law,Germany also admits this right and emphasizes centralized trial and strengthening the Court's duty in the proceeding.Japan protects the right by combining the special legislation with the Civil Procedure Code,and making the case trial more planned so as to resolve disputes in a centralized trial.As for the remedy procedure,it exists two main modes of preventive remedy and compensatory remedy in Germany,Austria,Italy and other countries,which also provides multiple perspectives for the perfection of the right in China.The forth part: The legislation and protection of the right to a timely trial in China.In order to realize effective protection,the right should be stipulated in the Civil Procedure Law as a principle,and established as a litigant right in the future.Meanwhile,it is necessary to make clear the application period of the right and the criteria for measuring whether it is violated.Secondly,we should set up the protection mechanism.From the angle of the parties,grant them the right to participate in the case management and to determine the trial limits through agreement with the court to ensure timely trail in every case;at the same time,strengthen the judge's obligation of timely trial by proper interpretations,so as to prompt the parties carry out the litigation action in a timely manner,and to make the proceeding in an orderly and efficient way.Finally,build the remedy system by giving the parties the right of objections to the litigation process,so as to avoid possible delays in proceedings or improper procedural arrangements by the court to achieve a timely trial.