The Entrusted Agent System In Civil Lawsuit Path Of Defects And Improvement Of The Research

The legal system of agency is an important part of the civil legal system,and also an important subject of civil law research.As an independent legal system,it is the product of highly developed commodity economy.When economic transactions are relatively simple and the scope is not wide,civil activities can be participated by the parties themselves,without the need for other agents.With the continuous development of commodity exchange relations,social life is becoming more and more complex and extensive.Participants in the commodity economy can not and can not do everything by themselves for various reasons,such as age,mental status,physical condition,educational level and so on.At this time,some civil activities should be carried out by others.In civil agency activities,it can be divided into two types according to the different agency activities in which the agent participates.One is litigation agency,refers to the parties based on legal provisions or a specific way of entrusting the agent in the litigation proceedings in the name of the parties concerned with civil acts;the other is outside the litigation agency,compared with litigation agency,the difference lies in whether the agent is involved in litigation activities.The principal-agent system in civil litigation has undergone several major changes and amendments in the normative system of the Civil Procedure Law of China.However,the scope of the trustee has not been thoroughly solidified in the Civil Procedure Law because of insisting on respecting the party's autonomy in civil litigation and adopting the arbitrary procedural agency system oriented by the litigant's litigation rights.It can be clearly seen from Article 58 of the current Civil Procedure Law that although the number of principal agents in litigation is clearly limited to at most two persons,the scope of principal agents in litigation is listed as three categories: lawyers and grass-roots legal service workers,close relatives or staff of the parties,and recommended citizens.Compared with the Civil Procedure Law of 1982 and 1991,the current Civil Procedure Law is more detailed and perfect in the definition of procedural principal-agent,but its scope is still broad and lack of clear identity definition,and there are still a large number of disputed cases of procedural principal-agent in judicial practice.In order to ensure the standardization and effective implementation of the principal-agent system in civil litigation,articles 83 to 89 of the Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China,which came into effect on February 4,2015,regulate this issue in more detail.The scope of practicing area,recommended citizen agency and close relatives of grass-roots legal service workers are defined more clearly.Even so,in view of the higher professional requirements of litigation activities,even among different lawyers,there are considerable differences in the objective understanding of legal facts,the burden of proof and the degree of understanding of the application of law.In this case,the principal-agent other than lawyer is not conducive to the investigation of objective facts because of the limited level of knowledge and awareness of legal norms.It is still unable to reflect the basic requirements of litigation and achieve the goal of litigation value by providing useful theoretical knowledge and viewpoints.The concrete manifestation is that the procedure connection is not smooth enough and the litigation cycle is too long,which eventually leads to the waste of limited judicial resources.In this regard,the academic community has put forward many useful theoretical suggestions and improvement measures,such as the adoption of the "compulsory lawyer agency system" in civil litigation,emphasizing that the compulsory lawyer agency system in civil litigation is conducive to "achieving judicial fairness,improving litigation efficiency,maintaining judicial order,forming rights restriction and promoting the value of litigation professionalization".It also holds that "compulsory lawyer's agency litigation is the key to the improvement of our country's civil procedural agency system".It was also suggested that restricting ordinary citizens to act as proxy in litigation "lacks persuasion and legitimacy",and that ordinary citizens should be allowed to participate in litigation as principal agents.Undoubtedly,this is a normal academic debate,and only by disputes,can we find out all kinds of flaws and shortcomings in the system of principal-agent in civil litigation from the root and improve it,formulate the system of principal-agent in civil litigation in accordance with legal principles and national conditions,and then realize the goal of protecting the legitimate rights and interests of the parties,improving judicial efficiency and promoting judicial justice.This paper consists of five parts.The first part is mainly about the overview of the principal-agent system in China's civil litigation and the main problems faced by the principal-agent system in civil litigation.Firstly,it expounds the historical origin of the principal-agent system in civil litigation,lists the main functions of the principal-agent system in civil litigation,and emphasizes the importance of the principal-agent system in civil litigation.At the same time,it will also analyze the problems of various principal agents from the judicial practice.Next in the second part,the causes of these problems will be analyzed and studied,and the causes of various types of civil litigation principal-agent problems in judicial practice will be described in detail.In the third part,the author chooses the norms of principal-agent in civil litigation of some countries and regions outside the territory as the object of exploration,and then makes a further study and summary of the successful experience of different countries and regions at different legislative levels after making a distinction and understanding of the detailed contents of the relevant code of conduct of principal-agent in civil litigation..According to the above-mentioned parts,the fourth part of the article puts forward suggestions and opinions to improve the system of principal-agent in civil litigation in China,mainly divided into the lawyers as principal-agent in civil litigation and non-lawyers as principal-agent in civil litigation to make recommendations for improvement.The fifth part is the conclusion of the article.