Research On The Fact Finding In The Trial Of Civil Default

The system of trial in absentia originated from ancient Rome and was absorbed by the civil procedure law of the world.When one party is absent from the trial,the trial by default system can quickly and effectively solve the dispute on the basis of justice.Although our country from the beginning of the founding of the already established the absentia system by the Supreme Court reply form,but today the legislative and judicial interpretation provisions are not comprehensive,and some rules of the law and judicial interpretation cannot be effective connection problems,one of the most obvious is absent in the trial judge how should review the evidence and the rules of ascertaining the facts,at the same time,in the absence of the trial judge cases also often cannot accurately absentia legislative concept and further lead to absence of trial the case facts that errors occur frequently.Since ancient times,the judicial process in China has taken the pursuit of truth as the first priority.Even in the current people's mind,the judicial system is still regarded as the last resort to seek justice.Therefore need to further improve on the one hand,our country's legislation absence of corresponding rules of the court system of legislations,in order to make the system and the civil litigation basic rules of effective connection,on the other hand,in the process of judicial application is also essential for the judge to build a set of special rules for ascertaining the facts,effectively guide the judge successfully complete the fact that in absentia.Therefore,this paper will be discussed from the following aspects.The first part of this paper is mainly about the definition of related concepts.Since the interpretation of some basic concepts in this paper is a little different from that of previous scholars,this part mainly explains "absence" and "fact identification",making them consistent with the thinking of this paper.At the same time,in order to deepen the understanding of the system of trial in absentia,this part also introduces the historical origin of the system and two different legislative models.In the part of introducing the historical origin of the system,this paper will focus on the historical evolution of the fact finding rules.The second part is legislation and empirical analysis.This paper summarizes the legislation of the system of trial by default in China and analyzes the existing problems in the legislation.At the same time,five typical cases of trial in absentia are selected and analyzed.Finally,the problems existing in the determination of facts by judges in trial in absentia in China's judicial practice are summarized.The third part is the comparative study,which selects Japan and Germany which adopt different legislation ideas of trial in absentia for comparative study.This paper mainly introduces the rules of fact determination in the trial in absentia system of Germany and Japan,and focuses on how the judges in Germany and Japan examine and determine evidence in the trial in absentia,and puts forward some Suggestions for China.Using the method of the fourth part mainly from the level of our country in absentia judge rules put forward some instructive Suggestions,ascertaining the facts on the fact that rules in absentia unique building,mainly from the following several aspects has carried on the construction: the cross-examination and the judge to review evidence,the use of the burden of proof,the standard of adjustment,the judge of the public.It is hoped that this set of special rules can make judges more flexible in determining facts in absentia trial and truly protect the litigants' legal rights and interests.