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AN ANALYSIS OF THE CIVIL LITIGATION RECONCILIATION SYSTEM IN CHINESE LAW
包冰锋,王悦 동아대학교 법학연구소 2019 國際去來와 法 Vol.- No.25
The civil Litigation Reconciliation system, aiming at eliminating civil disputes, is a procedural action that both parties in face of judges make mutual concessions and compromise in order to terminate the lawsuit or part of it during proceedings. Now, under the background of the court’s trail pressure increased dramatically, how to find a dispute resolution which will be more effective than trial has become a big issue that is focused by judicial circles in different nations and regions. Establishing a civil Litigation Reconciliation system on the basis of parties’ consensus is favored by individuals, however, Civil Procedure Law legislated in 1991 only prescribed it fundamentally in Article 51: “Both sides of a civil action may reach a settlement themselves.” And then, although Civil Procedure Law experienced 3 times amendments in 2007, 2012 and 2017 respectively, there were not any involvements in settlement provision. Therefore, it’s necessary to design and improve Chinese civil Litigation Reconciliation system from the aspect of its methods, time, expense burden, forms and effects.
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包冰锋,王悦 동아대학교 법학연구소 2020 國際去來와 法 Vol.- No.29
In recent years, in China's civil procedure, the traditional “family -oriented” and “non-lawsuit” litigation system has gradually transitioned to a litigant-dominated litigation system. The non-binding debating principle is moving towards the binding debating principle The rise of the third wave of procedural guarantee theory and its institutionalized reference is rising in the field of comparative law. But in judicial practice, Due to the lack of in-depth research on the legal basis of the common principle of evidence and the unified regulation of practical operation, Judges often go their own ways and fail to fully exercise the right of interpretation and inquiry, and fail to conduct typo logical analysis combined with the update of the theory of joint action, Therefore, causes to the party's surprise judgment, has harmed its entity interest and the procedure interest. Based on the previous theoretical research on the common principle of evidence, This paper makes a preliminary analysis of this problem by combining the theory of surprise judgment prevention and the overseas investigation of the type of joint action. Although it does not cover all types of cases, the core considerations are clear. The most cost-effective choice between respecting the psychological expectation of the parties and making full use of the litigation resources is also an inevitable result of the legal effect of the surprise judgment prevention theory in the application of the common principle of evidence. 近些年以来,在中国的民事诉讼程序中,传统“家事化”、“非讼化”诉讼体制逐渐向当事人主导型诉讼体制过渡,非约束性辩论原则逐渐向约束性辩论原则靠拢,程序保障第三波理论的兴起及其制度化借鉴的浪潮在比较法研究领域方兴未艾。但在司法实务中,因为缺乏对证据共通原则的法理基础的深入研究和对实务操作的统一规制,法官往往各行其是,未能充分行使释明权和询问权也未能结合共同诉讼理论的更新进行类型化分析,造成对当事人的突袭性裁判,损害了其实体利益和程序利益。本文在过往对证据共通原则理论研究的基础上,结合突袭性裁判防止的理论、共同诉讼类型的域外考察对此问题进行了初步分析。尽管尚未穷尽所有的案件类型,其核心考量是明确的。亦即,在尊重当事人心理预期和充分利用诉讼资源之间进行性价比最高的取舍,这也是以程序保障为导向的突袭性裁判防止理论在证据共通原则适用方面的法效果所必然引致的结果。
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