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Civil Court Procedure and Some Problems and Solutions
 
 
Civil Court Procedure and Some Problems and Countermeasures
 
Summary: China Civil establishment of pre-trial procedures and improve the way the modern judicial reform and the key prerequisite. In this paper, two legal systems, analysis of the current status of civil pre-trial procedures and difficulties, and proposed reconstruction with Chinese characteristics, mode of Civil Procedure before the countermeasures. In the civil law and common law countries, civil litigation in the pre-trial procedure is an important pre-trial proceedings stage. In China, by 1991 the ready, The so-called pre-trial preparation, is the People's Court accepted the case, before trial in order to ensure the smooth progress of the case by the trial of the litigation. Its main purpose is to prepare for the trial to ensure the smooth progress of the court. Of Civil Procedure Section 113-119 provides only before the court the following five major preparatory activities: 1, copy and pleadings served a copy of the complaint; 2, inform the parties of rights of action and collegial panel; 3, examine the case material; 4, investigation and collection of necessary evidence; 5, notice the necessary co-litigants participate in the proceedings and so on. These regulations or a planned economy to a market economy during the transition period the product has not yet formed a complete pre-trial procedures, but these provisions is the main contractor for the judge. This is difficult to judge in advance to prevent private contacts with the parties and the formation of preconceptions of evidence, the case has not yet led to formal trial, the judge approved the case materials, investigation and collection of evidence necessary to advance the case for a written hearing, and thus lose the neutrality of the judges and impartiality, it is difficult to mobilize the enthusiasm of the parties in litigation, but also makes the activities of the parties to the trial evidence, witnesses, debate and a series of adversarial litigation activities a mere formality. Therefore, This paper combines the reform of the actual trial mode, analysis of the Civil Procedure before the objective situation and the problems with Chinese characteristics for the civil reconstruction of pre-trial procedures countermeasures. First, the two legal systems and the objective of pre-trial proceedings Throughout the two legal systems and the status of pre-trial procedure system of civil status, there are mainly two modes: first, the authority principle mode. This model with a clear color of the traditional powers doctrine, that the court pre-trial proceedings in a civil initiative. Specifically for the courts and judges in the conduct of the proceedings, the program's start, end, and the decision of the object action litigation in areas such as data collection initiative. By 1895 this pattern was a typical representative of the Austrian civil procedure law, civil law countries, mostly it. Although the current Civil Procedure Law of the adversary mode of reference, but the Law 113-119 provides that Second, the adversary model. The so-called adversary system, also known as combat-type models, including the following meanings: First, start a civil action depends on the parties; Second, the court or the judge can not take the initiative to start and advance in accordance with terms of civil procedure; Third, the court or tribunal of judges based on the evidence information can only rely on the parties as the Court advocated an object can only be judged from the parties, the court or a judge can not be specified in the parties beyond the scope of evidence to collect evidence. Adversary in 1806 as the representative of the French Civil Code, common law countries, mostly in the. Of course, the modern mode of pre-trial proceedings of Authority has absorbed many of the content of Marxist parties, but also with the medieval inquisitorial mode of pre-trial procedures With fundamentally different. In particular, pre-trial proceedings in civil, terms and Party of the distinction is not clear. April 1, 2002 shall come into force of the content, but this model only in a certain environment can play a role, proved to promote and implement a comprehensive National Court is still a long way to go. In recent years, China's combination of theory and practice of community more than two models, and boldly put forward China's Civil Procedure before the adversary should be the basis of absorbing the advantages of powers doctrine, out of an adversary with Chinese characteristics, the trial the road before the procedure. This eclectic attempt has been successful in some courts, the Supreme Court also appeared for the Civil Procedure Law after the implementation of new situations and new problems, has developed a series of judicial interpretation and documentation of requirements, can be on the judicial interpretation of pre-trial proceedings In addition to the exchange of evidence before court and a separate pre-trial judge shall make a brief contact with one of the parties and other provisions, other provisions of the almost not involved. assurance, and has since been away from the danger of secret infringement, but the Supreme Court's judicial interpretation, after all, can not replace the current Civil Procedure Law of China, Besides these provisions is fragmented, in judicial practice, the situation varies around the court, the judge's understanding, not the same cognitive abilities, resulting in operation in practice is also inconsistent. Therefore, we can say that the level of our current legal system has not formed a complete pre-trial civil procedure system. Second, China's pre-trial proceedings problems and difficulties with China's accession to WTO, if our However, we see that theory and practice, but also restricts some of the problems of the Reconstruction of Civil Procedure before trial process. First, the legislation lags behind pre-trial proceedings, all over the court on the legal aspects of pre-trial procedure has not been a As China is not on the legal aspects of building a more complete system of system of pre-trial procedures, coupled with China's national conditions and complex, something quite different north and south, making the practice of local courts in the judicial system reform, the contents of pre-trial proceedings are different, methods method is also not consistent, but we can see that the reforms undertaken over the majority of the Court is built on the basis of pragmatism, while the common law and civil law theory and its two modes of practice in various countries, gains and losses, yet lack of understanding of the system, review and reference. now all over the court to explore a lot of innovation out of the Rules of Civil Procedure before actually substantive rules with the rules of procedure and there is a double confusion: both have been unable to maintain the legitimacy of pre-trial procedure and efficiency, but also difficult to reflect after the reform of the existing trial mode, the required legal characteristics of targets. Second, lack of pre-trial proceedings the guidance of scientific theory, models often lead to two pre-collision, which showed a certain procedural reform of the system pre-trial proceedings blindness. China should take pre-trial process model, is the adversary or the terms of doctrine, or to the main parties, terms of doctrine, or to take a secondary road with Chinese characteristics and style? This is a theoretical problem but also a very real problem. Procedure Law in 1991, although borrowed from the adversary model, but still the light of pre-trial preparation procedure of powers doctrine of the mode of civil law countries, and the Supreme Court's law countries, the adversary model. In this context the formation of pre-trial does not break the rules of procedure inevitably Civil Procedure on the If the date for determining the exchange of evidence and evidence such as the right is the loss of evidence may at any time on the Civil Procedure Law of the breakthrough; now few court-imposed In addition, because the court pre-trial proceedings all over the reform of the system will differ, not the same degree of difficulty can be said that the pretrial procedural rules are administered by different departments, the Supreme Court has not the experience under the existing judicial practice, systematic and timely These systems unify the pre-trial procedures, development of uniform rules for pre-trial proceedings. Third, the conservative character of the judge to follow the established rules and legal home of the On the one hand, although the Trial Reform in full swing, the this work. Many courts (especially the grassroots mountain court) still cling to the old On the other hand, levels of economic and social development of pre-trial process model restricts the reform process. Implementation of the mode requirements. Although China's accession to WTO has been almost two years, but local economic development is still uneven, the differences between the parties legal knowledge, do not know how the litigation is also a lot of people, and to bear more costs to hire a lawyer. If only emphasizes the color is full of pre-trial adversary process model, regardless of the parties (especially the rural areas) in economic conditions, legal operation of the technical aspects of reality, people may give up legal channels and to find other ways to resolve disputes. Third, the reconstruction of pre-trial proceedings in Civil Action Reflection view of the above problems and difficulties, how to reconstruct the civil trial procedures, the full implementation of the concept of justice for the people is placed in front of us a more pressing issue . In my opinion, from a client-based, complemented by authority principle mode of pre-trial proceedings forward with more scientific and operational, should be the future mode of Civil Procedure before the reform. In other words, the parties should be clear as soon as possible in the Procedure before the Court in the power division, the combination of power looking for two strong adhesive to form an interactive mechanism for resolving civil disputes. However, the establishment of pre-trial proceedings, after all, means that judges and parties and their attorneys in the proceedings of the role and function of the re-sharing or distribution, with the pre-trial proceedings on deepening understanding of the WTO China has the case by modifying the Civil Procedure to establish a system of pre-trial proceedings and the specific program structure is very important to the style. (A) Strengthening Civil Procedure before the legislation should be amended Civil Procedure Law and the development of uniform as soon as possible pre-trial rules of procedure. The end of civil legislation as soon as the current We modify the Civil Procedure Law, the common law should draw on the useful experience of pre-trial proceedings, and as I used to construct models of pre-trial procedures. In my opinion, on the one hand, from the terms of the structure of Civil Procedure Law, Civil Procedure Law of the structure should be prepared to make the necessary adjustments chapter, that only four Civil Procedure Code in the original case, add the contents of a pre-trial proceedings that the general principles, trial procedures, trial procedures, enforcement procedures, foreign program five. The pre-trial procedures, it should include the following: 1, pre-trial supervision procedures; 2, pre-trial property preservation and advance the implementation of procedures; 3, pre-trial preparation procedure; 4, pre-trial mediation; 5, pre-trial case to procedures. Why should supervise the program which was placed under the pre-trial procedures? Part II, because the current proceedings in the Civil Procedure Law, including the supervision process, we understood literally, people's courts is issued by the applicant's application for an order of payment and did not go to trial, so that the existing Civil Procedure will urge program on the Part II is a defect in the proceedings, and now if a pretrial procedure designed for the Editor, the problem is solved. In addition, the property preservation and advance the implementation of General papers in excised from the Civil Procedure Law, but also classified to the chapter in the pre-trial procedures, will further standardize and improve the Civil Procedure Law of the structural system, is conducive to safeguarding the legitimate rights and interests of timely disputes. On the other hand, from the reality of our situation, the current two-step approach should be taken that first step is to people around the Supreme Court should pre-trial unify the rules of procedure, combined with our current Present on all pre-trial rules of procedure to be fleshed out further, based on pre-trial procedures for uniform civil judicial interpretation. The second step is the legislature should be based on Supreme Court pre-trial rules of procedure and the majority of useful information on the views of experts, learning from foreign models of pre-trial procedures and practices of good legislation, amend the Civil Procedure Law as soon as possible, additional pre-trial proceedings articles. (B) Reconstruction of legitimacy and efficiency is the premise of pre-trial procedures, and reasonable to set and refine its content, resources and costs of conservation action is critical. The value of the pursuit of pre-trial proceedings is to achieve a transparent, fair, efficient and inexpensive resolution of disputes. The legitimacy of pre-trial procedures and efficiency, determines the size of the workload of pre-trial proceedings related to the litigation effective use of resources. 1, pre-trial supervision procedures in the program. Supervision is the amount of money or securities for the subject of the request, the people's court under the creditor's application, send the debtor a conditional payment order, the statutory period if the debtor does not fulfill its obligations without a written objection, the creditors can pay so that the people's court for enforcement. Simplification of the proceedings, the civil law applicable to urge the German of an earlier program in the world. Since 1982, District Court of Stuttgart in Germany began to urge the pilot program called the Automatic (the AMV). China's Civil Procedure Law in 1991 to urge the process to adapt and simplify the development of commodity economy and the new increase in the proceedings of a separate programs. From the nature point of view, to urge the process should be part of the proceedings, but it is different from the usual procedure. The procedure for supervising the proceedings with the usual important difference is the omitted part of a series of lawsuits, which form only for review, eliminating the need for defense, investigation, trial, appeals and other aspects of second instance, which makes supervision process is simple and rapid characteristics. But now it appears that the 1991 Civil Procedure Law will urge program on the proceedings papers are defective, and if articles placed in pre-trial procedures, to more scientific, the effect will be better. Articles on pre-trial procedures for years, saving the people's court of human, material and financial resources, and convenient to the parties to litigation, timely protection of their legitimate rights and interests. At the same time, will urge the procedure in pretrial procedure articles, the reform of China's integration into the trial mode of information fast lane, construction supervision with Chinese characteristics, process automation, providing a more convenient platform. To do is to be placed on file for the judge to urge the procedure for the case 3 days after placing the payment order by the Assistant to the drafting of documents by the judge responsible for the delivery of its served on the applicant after the challenge, and made a ruling to terminate the procedure for supervising inform the parties of a right of action; by the applicant does not raise any objections, with the applicant's application for transfer of the implementation of the Court (or Board) implementation. 2, pre-trial proceedings in the property preservation and advance the implementation process. Preservation of property, is the people's court or by the interested party before filing a lawsuit in the people's court complaint handling process, to ensure the execution or to avoid the loss of property, the property of the parties or the subject matter of the dispute, to take the mandatory limit their actions measures. Is to advance the implementation of timely and effectively protect the legitimate rights and interests of the urgent need of the case by the applicants or the people's court according to its own initiative to take a temporary measure. Property preservation and advance the implementation of the final judge is not the case, but not every case of the inevitable process. Civil Procedure Law in 1991 from the common purpose and legislative intent of starting the implementation of property preservation and advance planning in the General section. We are now the property preservation and advance the implementation of classified pre-trial procedures, the author is based on the following considerations. On the one hand, from the judicial practice, China set the property preservation and advance the implementation of all is to save litigation costs, resolve disputes as quickly as possible to achieve protection of the legitimate interests of creditors and parties to the purpose of more effective measures and ways to practice in the trial of the vast Most of the judges of the Court through the filing and implementation of the assistant judge, if the property preservation and advance into the pre-trial procedures for the implementation of articles, to facilitate the people's court resources. On the other hand, from the Theory of Justice, property preservation and advance the nature of the implementation is still in a stage before the proceedings are for the ruling People's Court of Bao Zheng to the smooth implementation when a party's property or avoid losses, but by People's Court under application of a party to the dispute or on its property or the property of a party to the unique preservation and advance the implementation of measures. Therefore, the implementation of property preservation and advance into the pre-trial proceedings papers in theory work, in practice, is feasible. In the current implementation of property preservation and advance gradually increasing proportion of cases in the case, do property preservation and advance the implementation of pre-trial procedures should be an important part of the work. 3, pre-trial procedures in the preparation procedures. First, on the evidence and judge the parties involved. In China, the lawyers will be less than the reality of the judges in the objective existence of a period of time, ready to process evidence and judge the parties involved in accordance with terms of verification, although the Supreme Court has in the -price restrictions in effect, makes this stage difficult to fully implement a time. I am generally not familiar with the party law, a party not represented by counsel or both of the case will be widespread, which requires pre-trial judge necessary guidance and intervention. Because in the absence of counsel in the litigation,You are not allowed to view links. Register or Login, the parties are generally more a lack of capacity to collect evidence and in accordance with the legal requirements of proof of the debate on the ideas and skills. As has been the preparation of human resources in the courts, judges often feel they have to or have to take the initiative to fill the case for lack of counsel and the formation of gaps or lack of the ability of the parties. If the judge completely indifferent pre-trial evidence, court hearing itself, it is difficult to achieve the desired results; if over-involvement in pre-trial judge, will return to taking action or This dilemma means that judges must be properly prepared to participate, but should do their fair share. I believe that the key to mastering this is a clear sense of proportion for the task of pre-trial judge is to determine the object as a focus and will be hearing a dispute review of the evidence submitted, and the formation of the entity on the facts of the case to determine as much as possible on the left in the trial. On the one hand, legislation on the collection of evidence and should be considered by the parties responsible for the main judge in the case of the beginning and the whole process of preparing guidance on the parties to present evidence only. On the other hand, the legislation should set up a special judge to verify the system, the establishment of separation of judicial and investigative powers of action mechanism; and should be emphasized that the written application must be approved by the parties, the Assistant Judge ex officio investigation to gather the necessary evidence, and in scope make appropriate restrictions. Second, the exchange of evidence. The so-called pre-trial evidence exchange, is the people's court of first instance civil cases accepted in court before the court presided over by the parties to achieve exchange of evidence, so that the judge fixed the evidence, clear focus of controversy in the litigation. April 1, 2002 shall come into force I believe that should be abolished and the provisions of Article 116 Procedure Law, a judge from the legislation established under the auspices of the parties to each other can have the evidence of the lawsuit as the main data exchange information system, thus truly prevent the judge preconceived understanding the case. At this stage, the Assistant Judge organize the exchange of evidence should take the following steps: (1) to determine both the date of exchange of evidence; (2) send written notice to the exchange of evidence, understand the other side have the evidence; (3) organization exchange of evidence, a clear common point, eliminate unnecessary disputes over points; (4) the evidence guide, clearly still need to supplement the evidence; (5) produced evidence of the registration form and the exchange of notes and other evidence. In addition, legislation should be clear that the defendant is a duty to submit a defense in a proceeding obligation to avoid the schedule because the defendant did not submit a defense resulting from litigation delays. Third, by all models on the case. Cases of rational division of all models, the decision procedure for the size of the workload, efficiency of the proceedings is essential. Assistant judge by the practice of marking, with the parties to talk, usually combined with practical work experience in the analysis to determine the case yet so can be a reasonable distinction. Of course, for simple cases or cases handled by summary procedure, may, without pre-trial preparation procedure, but also engage in pretrial exchange of evidence in the pre-trial mediation fails, the assistant judge may transfer the case directly to the full court and the trial judge. 4, pre-trial proceedings in the mediation process. The so-called pre-trial mediation, is under the auspices of the assistant judges, the parties to dispute the substantive rights and obligations of voluntary equal footing, reached an agreement in the trial court to resolve disputes, litigation activity and closed way. In common law countries, most of the emphasis on pre-trial settlement. Civil action as the United States, a little known fact is that 90% of the cases were before the trial reached by the end of such means of reconciliation. Learn from the experience of American civil procedure, civil litigation in China should be the end of the exchange of evidence, Assistant held pre-trial judge shall determine the time of the meeting, and can be directly after the end of the evidence exchange organization. In other words, the Assistant Judge, held pre-trial conference organization should be the focus of controversy between the two sides discuss issues that do not have access to non-controversial part of the court, so to simplify court proceedings, improve litigation efficiency. Meanwhile, the assistant judges of both parties should actively seek reconciliation possible, seize the opportunity to do mediation work. In order to do pre-trial mediation, assistant judge may discuss the substantive issues involved in the case and should form their own understanding of the case of evidence to guide targeted to reach a settlement agreement of both parties. Practice from the trial, Assistant Judge in pre-trial mediation than in court mediation has the following benefits: First, the agreement is conducive to the formation of parties, to reduce unnecessary v. tired; the second is closed to avoid and prevent the mandatory mediation, fair protect the legitimate civil rights; third parties do not have to worry about the possible sentence for refusing to mediate when the adverse consequences of their own, and thus against their acceptance is not really conform to the interests of the mediation program; Fourth, mediation can take the form of a flexible and approach is conducive to the settlement agreement reached. In short, should be further pre-trial mediation settlement led to the party's own inclination, generally use the