Research On The Contractualization Of Civil Litigation Right

The theory of civil litigation rights is the cornerstone of the theory of civil litigation value and the theory of civil litigation.The core problem is whether the right of action can be punished in a consensual manner,which fundamentally involves the concrete implementation of the principle of autonomy of private law in the civil action.In our country,with the deepening development of market economy,the color of the interference of the power of the court in the traditional civil litigation is gradually weakened,the principle of autonomy of private law has been continuously expanded and extended,and the phenomenon of litigation contract has been increasing in the judicial practice.China's civil judicial practice recognized the legality of the right of action contract,and spontaneously formed a more mature adjudication rules.However,there is no clear stipulation or approval of the deed of action in the Civil procedure Law of our country.In theory,there is no consensus,legislation,theory and practice on the basic issues such as "whether or not the right of action can be given up","whether the contract of action is effective","the constituent elements of the contract of action","the standard of examination of the contract of action" and other basic issues,such as the separation of legislation,theory and practice,and so on.It is bound to lead to legal / rational inadequacy in the application of justice.In view of this,taking the theory of the right of action as the logical starting point,this paper comprehensively combs and analyzes the phenomenon,types and difficulties faced by the contract of the right of action in judicial practice.On the basis of careful extraterritorial comparison,the author tries to explain some basic theoretical issues of litigation contract in accordance with the national conditions of our country,with a view to the development of contract of civil litigation right in our country.In addition to the introduction and conclusion,the text is divided into four chapters: The first chapter is the introduction of civil litigation contract based on the close relationship between litigation rights and litigation rights theory.This chapter aims to discuss the concept,connotation and nature of litigation rights from the discussion of the basic scope of litigation rights,and its legislation,justice and human rights.The value of protection and other aspects;The second chapter is the practice status of the contractualization of civil litigation rights in China.This chapter aims to summarize the specific types of judicial application of civil litigation rights by analyzing the general situation of civil litigation contract practice,summarizing the local court's handling mechanism of litigation contract disputes,and revealing the lack of civil litigation contractual legislation in China.Practical dilemmas such as inconsistency in judicial application caused by insufficient theoretical research;The third chapter is the comparison of the contract of the right of civil action outside the territory.The purpose of this chapter is to summarize the relevant theoretical basis and practical experience through the investigation of the theory and system practice of contract of civil litigation right in civil law system and Anglo-American law system,and to summarize the relevant legislation of our country.The present situation of theory and practice as well as the future possibility of the deed of civil litigation right in our country can be used for reference;The fourth chapter is the Chinese path of the contract of civil litigation right.On the basis of the above-mentioned research,this chapter puts forward the concrete conception of the contract of civil litigation right in our country,that is,to promote the transformation of litigation mode from functional doctrine to litigant doctrine.Carry out the principle of disposition right and the principle of good faith as the center to establish the theory principle of contract of civil litigation right of our country,and construct the concrete system of contract of right of action from the conditions of establishing and effective of civil contract,the standard of examination,the settlement of dispute and so on.From the two dimensions of entity and procedure,we perfect the regulation mechanism of abusing the contract of litigation right.