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The Principle of Direct and Oral Trial and the Reform of Civil Procedure

Author: SuoZhanChao
Tutor: WuZeYong
School: Henan University
Course: Procedural Law
Keywords: direct and oral trial basic principle of civil action form of trial vicissitude
CLC: D915.2
Type: Master's thesis
Year: 2007
Downloads: 157
Quote: 2
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Abstract

Principle of direct and oral trial (in below, it can be substituted by‘the principle’) is one of basic principles of modern civil procedure. It holds two functions concurrently, one is to safeguard procedural fairness, the other is to promote justice of entities. It occupies an important place and plays an important role in civil action. Since it was established, however, it is not totally stable, but has always been changing. Particularly since the late 20th century, countries in the world have carried litigation reform one after another, and some of the measures are modifications and limitations to the principle .This makes the role of it relatively weakened. This paper hackle the process of establishment and vicissitude of the principle from historical perspective and analyze the reasons and impact of this vicissitude. Finally, it discussed the position and attitude what we should have to this change. The body can be divided into five Chapters:ChapterⅠ: The theoretics foundations of the principle. The principle established in the beginning is not only a manifestation of the anti-feudal political demands, a reflection of the humanity and the development of the concept of justice, moreover, it has more profound theoretical basis. This paper focus on the three important theoretics foundations: the theory of procedural justice, the autonomy of private law, preserving the effect of res judicata.Chapter II: The status and role of the principle in civil procedure. The principle of direct and oral trial is the basic principle in civil procedure, it determines the basic structure of civil action——“antagonism and determinant”, and occupies an important position in the system of basic principle of civil procedure. It is the base,the precondition and the guarantee of others principles in civil procedure. Its roles in civil action performance in four main areas: it can enrich the trial, make trial more livingness;it can accord the inherence request of process , contribute to the realization of procedural fairness;it is benefit to discover the facts of the case, and promote substantive justice proceedings; finally, it is benefit for a judgement to be admited and enforced.Chapter III: Establishment and vicissitude of the principle. At first, the principle was established in France civil procedurelaw. And later Germany, Japan, Italy and other European countries have also established the principle in their civil procedure law in succession. But shortly after the establishment, there are Vicissitudes about it. The reasons of the vicissitude are the following: first, inorder to promote litigation, accelerated procedures;second, the concept of liberalism litigation changed to be concept of social;third, the impact of modern technology. The vicissitude can promote the procedure objectively, and this led to the meaning of direct and oral updating continuously and promoting civil proceedings to informationalization in turn.Chapter IV: The principle of direct and oral trial of civil procedure in our country. In our country, the civil procedure law has not explicitly stipulate the principle of direct and oral trial,but current legislation and judicial interpretation already has demonstrated some of the requirements of the principles. However, this alone is not enough, the mode of direct and oral trial has far from being established, indirect, written trial is still more common. The phenomenon appeared in civil procedure, such as The system of Ask for instructions and The expand of the direct judgment, witnesses failed to appear in court and dissimilation of the functions of judicial committee, are all violate from the principle of direct and oral trial.ChapterⅤ: The principle of direct and oral trial and the reform of civil procedure in our country. Taking a panoramic view of China’s civil justice reform in the past twenty years, an important direction is the standardization of court hearing, and carry out the principle of direct and oral trial is significant for it. Therefore, our civil action has the urgent request for the establishment of the principle as a basic principle. This is reflected in the following aspects, namely: the trial should be heard by judge independently and carried through centralizedly, and Subject Feature of the parties should also be established. On the question about how to reform civil procedure in our country according to the principle of direct and oral trial, this paper presents the following ideas: first , adequate preparation for pre-trial proceedings should be established, so, it can make the principle more efficient;Second, we must reform the judicial committee system, ensure that the judge can contact the case directly;Third, improve the system of witnesses,put the principle into effect. At the last, this paper discusses the exceptions of the principle of direct and oral trial.The epilogue answered the series of questions that brought though in forward, it considered that there are two important reasons about the vicissitude of the role of the principle: for one hand, it is a countermeasure for the developed countries to resolve their civil lawsuits arising from the delay, for another hand, it is also inevitable of the development of modern science and technology. It has one side of legitimacy, but also has negative impact that cannot be ignored. The civil procedure in our country and that in west world are at different stages of development, so, it is still necessary for us establish and implement this principle in our country.

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CLC: > Political, legal > Legal > UNIVERSITY > Procedural Law > Civil Procedure Law
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