The Defects And Relief Of The Court Action

Court's procedural acts is not only a part of litigation,but also an important part of civil action.Whether it can be done correctly is not only related to the protection of the legitimate rights and interests of the parties,but also to the credibility of the judiciary.But at present,the study of court action has not been paid much attention to,and a perfect theoretical system has not been formed.If you encounter defects in the court proceedings in the trial practice,not only difficult for the parties to open the relief way,the court handled this way are not the same,sometimes a tiny flaw will be remanded,appears to be the protection of the rights of the parties,it is a waste of judicial resources.Therefore,it is necessary to make a systematic study of the defects of the court action.The article is based on the reference action theory,the concept of the court proceedings were defined,and on the basis of court proceedings "defect" standard,forms and classification,and put forward the corresponding action different defects relief,hope theoretical research can be helpful to judicial practice.The article describes mainly the following parts:Chapter? defines the concept of court action and the standard of "defect".First of all,through the study on "action" theory and interpretation of them,combined with the discussion on the proceedings of the China civil procedure law textbooks,analysis of advantages of various theories and the lack of the wide and narrow sense "theory is more reasonable than others,because it realized in different situations," the meaning of action will be different,is also limited to admit that in the process of litigation,other litigation participants also belong to action.Secondly,we review the historical evolution of the theory of civil action,and conclude that civil action mainly includes court action,litigant's action and other litigants' action.Again,in the basis of clarifying the meaning of the court proceedings,according to the criminal procedure law in court proceedings in the definition of "defects" identification standards are discussed,that the court proceedings "flaw" is not in accordance with the procedures for implementation of the law refers to the court's procedural acts,including acts and omissions in two forms.Finally,the elements of flaws in the court proceedings are discussed,which should meet between subject and defect behavior,damage and flaw behavior and harmful consequences should be a causal relationship between the four elements,the fault should not be regarded as elements of flaws in the court proceedings.Chapter ? analyses the form and classification of the defects of the court action.First,the defects of the court action are mainly manifested in the defects on the subject,the defects in the content and the defects in the form.The main defect of the main body qualification includes a number of flaws and defects on the provisions;content flaws not only refers to the content of action in violation of procedure law,should also include the actions of uncertain content and content is not possible;formal defect refers to the behavior is not made in accordance with the civil procedure law and the relevant provisions of the judicial explain the form,the behavior is not established or not the legal effect of the consequences of this defect in various forms of diversity,the main behavior forms of defects and defect of form document delivery.Secondly,considering the various flaws that may arise in court action,we should give different levels of relief to different forms of defects.If we generalize,it will seriously affect the efficiency of justice and do not conform to the principle of litigation economy.Therefore,it is convenient for the subsequent formulation of different relief measures to classify the defects of the court action.According to different stages,divided into the flaws and out of court proceedings in accordance with the flaw;behavior,classified as defects and omission of defect;according to the litigation rights of damage is related to the substantive rights,divided into harmful defects andharmless flaw.Chapter ?,the remedy measures are put forward in view of the defects of different litigation behavior.Through the reference of foreign legislation,it mainly discusses the harmful flaws and the harmless defects.First of all,for the innocuous defects,it can be remedied by the way of correction.On the basis of the experience of extraterritorial legislation that our law is necessary for expanding interpretation of "mistakes",will be a kind of representation of the error in the judgment and reason,omissions,errors or contradictions,the provisions of the law judgment reference number errors included.The initiation of a correction procedure can be applied either according to the authority or by time.However,during the period of appeals and retrial,it shall be agreed by the court of trial or handled by a trial court.To correct the defects in the judgments should use ruling form,and limited to the elimination of the original judgment in a typo,mistakes and contradictions,shall not change the substantive content of the original judgment.Secondly,for the relief of harmful defects including three kinds: improve the existing objection system,clear right abandon or loss as well as the consequences to abandon or loss,and hope that through the improvement of the legal provisions for the right to guarantee the effective exercise of the right of dissent;makes the idea into the supplementary judgment system and applicable conditions,starting mode,processing mode and so on;will confirm the ineffective system of legal action as a fallback relief measures,based on the necessity of the introduction of the system on the analysis put forward some suggestions.Finally,in view of our country law of court litigation defective should bear legal responsibility not give enough attention,in the important laws and regulations are not clearly defined,only from a judge in violation of professional ethics and discipline actions and responsibilities in the current situation of some clue,procedural referee mechanism can be introduced when necessary,the court may constitute a defect in the lawsuit behavior to review,if it violated the rules of the procedural law can make the lawsuit behavior of the sanctions of the judge.The article makes a systematic analysis of the defects of court proceedings,summarizes the main manifestations of the defects of court proceedings,and putsforward relief measures on this basis.The court as a state organ,plays a crucial role in the process of civil litigation,the jurisdiction of the court as the executor of the judge,to hear hundreds of cases each year,action made is too many to count of relief in the litigation,analysis and flaw is not only conducive to protect the legal rights of the parties,but also to establish the judicial authority.In addition,different remedies are given to different defects,and the judicial resources can be saved and the efficiency of the lawsuit is improved.It is hoped that the research and analysis of this article can make a great effort to systematize the action theory of litigation.