The Procedural Defense In Civil Litigation

The main activity in the litigation is the attack and defense between the two parties.The judge ascertains the facts of the case and applies the law correctly in the process that the defendants defend each other against each other.The defendant,as the litigant,defended the plaintiff's claim that the facts could be defended by different methods including defenses,denials and refutations.On the one hand,these methods of defense affect the parties' success and defeat in specific litigation activities.On the other hand,for the judges and other legal workers,countermeasures such as “defense”,“rebuttal” and “denial”,which are the basis for the assignment of responsibility belonging to the basic categories of civil procedure jurisprudence and closely related to the work of their adjudication,representation and other work.In addition,in Chinese trial practice,as long as the defendant in the case appears and defends himself/herself,the defendant will certainly exercise the right of defense in the proceedings,and this defense may be invoked from the procedural law or may be invoked from the substantive law.Although Chinese civil procedure defense system currently forms a framework consensus that divides civil defense into procedural defense and substantive defense,the specific content,especially the defense against prosecution and the defense of evidence in procedural defense,involve both the concept,classification and the use of judicial practice there are many problems to be solved.For example,in case of project quality dispute,the contractor sues the contractor for it to pay the arrears of the project money and interest,while the employer expresses in the defense opinion the contractor's engineering quality failed,then is this a defense or counterclaim? In practice,some judges treat it as a defense,while there are also some judges who request the contractor to file a counterclaim or separate prosecution.In this case,the different attributions of the defendant in litigation will cause a series of legal consequences,including the change of the burden of proof,and will directly affect the final settlement of the substantive rights and disputes of both parties.Therefore,this article takes the procedural defense as the main research object,mainly using the method of legal hermeneutics and comparative analysis,combined with the status quo of legal practice in our country.This article interprets and clarifies the different concepts of domestic scholars on the defense of civil prosecution.It also discusses the historical origins of procedural defense,extraterritorial legislation and the scope of evidence defense and evidence defense,and puts forward the author's own views on the problems that arise during the specific application of procedural defense.This article is divided into three chapters:Chapter One mainly discusses the historical origins of procedural defense in civil litigation,and aims to build the theoretical basis of this article through the history of counter-claims and the comparison of extraterritorial legislation.Firstly,Chapter One searches for the jurisprudence basis of defense from the historical origins.Secondly,comparing the civil law system with the Anglo-American legal system,it analyzes the category of procedural defense and constructs a reasonable procedural defense classification,as for the related defensive means such as denial,defense and counterclaim discrimination.On the basis of summarizing the reasonableness of the right of defense in our country,Chapter Two elaborates the concept of the right of defense pleading for defense in theory,mainly divided into: jurisdiction defense,procedural delay defense and invalid litigation defense.Suggestions are put forward for the status quo and perfection of the system of defense and defense in China.On the basis of the Chapter One,Chapter Three expounds the defense of evidence in procedural defense,analyzes the current problems such as unclear category,cross regulation and insufficient procedural guarantee in the evidence defense in China and puts forward a perfect path at last.