Research On The Pre-trial Procedure Of Civil Litigation

After the registration of a civil case by the court,and right before trial,the pretrial procedure,which is independently valued from the trial procedure,occurs when two parties and the court jointly accumulate and exchange evidence,settle disputable issues and furthermore,may agree on a possible settlement.The purpose of this procedure is to get all parties and the court prepared for entering the phase of session.After China's several judicial reformation of civil litigation system,the significance of pretrial procedure is getting more and more attention.Nevertheless,rather than a independent procedure,it is still seemed to be the preparation of trial procedure and one component of court session.In judicial practice of China,the core of the civil litigation system is trial,other procedures are for preparation and assistance which tends to ignore the function of dispute-settling of pretrial procedure.This paper has the purpose to research and analyze the pretrial procedure of our country and attempts to use the civil pretrial procedure of U.S.A for reference to give some proposal in perfection of civil pretrial procedure of China.The paper consists of four parts,the meaning of civil pretrial procedure,the legislation and practice of civil pretrial procedure of China and the perfection of civil pretrial procedure of China.The first chapter focuses mainly on the meaning of the civil pretrial procedure and gives a general definition of the procedure.The second part of the chapter is the characteristic of the procedure,which is,(1)The independence of the procedure.(2)The diversity of the participants.(3)The necessity of the occurrence.(4)The certainty of the contents.Though the initial purpose of the establishment of the civil pretrial procedure is preparing for trial,it derived its own independent value.For instance,two parties may come into a settlement after a primary step of evidence exchanging and issues clearing,which implies the independent value of pretrial procedure.At the end of the chapter,it analyzes the three functions of pretrial procedure,to clear and settle the issues,to accumulate and exchange the evidence and the alternative dispute resolution function.The second chapter is about the legislation and practice of civil pretrial procedureof China.The current legislation of civil pretrial procedures shows that it takes decades to establish this procedure in China.In the 2001 EVIDENCE IN CIVIL PROCEDURES there is no rules about pretrial procedure but some particular articles about time limit for adducing evidence and exchanging evidence.The CIVIL PROCEDURE amended in 2012 introduces pretrial procedure as a preparation stage of first trial procedure.After years of judicial practice,the INTERPRETATION OF CIVIL PROCEDURE in 2015 adds rules of pretrial preparation and pretrial conference,besides some changes about rules of evidence.This interpretation is a meaningful supplement for CIVIL PROCEDURE and as well as a guidance to judicial practice.Th flaws of pretrial procedure in legislation embodies in the deficiency of civil defense invalidity system and evidence exchange system and the interpretation right of the judge.In the aspect of judicial practice,there are some arguments about whether should the judge of register court or trial court host the pretrial procedure.Nevertheless,the dispute resolution function of pretrial procedure is incomplete in China.In the last chapter the author introduces and analyzes the civil pretrial procedure of U.S.A from three stages,the pleading,the discovery and the pretrial conference.Based on the current judicial condition of China,the civil pretrial procedure should be improved from four aspects,the pleading system,the evidence exchange system and the pretrial conference.