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On the Location of the Authority of Judge and the Institutional Transformation of Civil Litigation

Author: GuoYanJun
Tutor: WuZeYong
School: Henan University
Course: Procedural Law
Keywords: the authority of judge location Institutional transformation
CLC: D926.2
Type: Master's thesis
Year: 2008
Downloads: 137
Quote: 1
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Abstract

After more than ten years’discussion and the practice of reform, the discussion on restructuring the civil litigation system has achieved a certain degree of consensus. That is, China’s civil litigation system should change from the current model of super-powers to the parties pattern, weakening the functions of the Court in the litigation process, strengthen the positive role of the parties, prominent the dominant position of the parties in the proceedings, and to constructed such a system in which the parties hold the main functions, and supplemented by the power of the court. In this transition process, we need to re-examine the role of the Court and the parties, the paper have a initial study on the location of court power, the role of the judge, the balance between the court power and the main position of the parties in this transition process, hoping can draw out some useful enlightenment.This article has four parts except the prelude and concludes.Part I: The transition of China’s civil litigation system and the existing problems. China’s civil litigation system is changing from super-powers mode to the parties pattern, weakening the functions of the Court, and strengthen the positive role of the parties, prominent the dominant position of parties in the procedure, to construct a system of the parties control mainly, supplemented by the court power. In this transition process, there exist such questions, the lack of equal status of the parties, the defect of the parties’main procedure status, unequal of rights and responsibilities, and the improper exercise of judge power, and so on.Part II: The authority of judge in Comparative Law Perspective. In civil law, the authority of judge is comparatively quite strong, experienced many years judicial reform, proceeding a further expansion, performance as the substantive proceedings command in the course of the proceedings. In common law, performance as the rise of“Managerial judge”, the judge changed the past negative, neutral image, beginning active case management in the proceeding, to prevent the abuse of rights of the parties to ensure the efficiency of the proceedings. Part III: The Inspiration of the location of authority of judge in two legal systems to the institution transformation of civil litigation in China. In the process to the parties model, we can’t distinguish but simply weaken the authority of judge, but should treat it differently. The absolute powers and the right of investigate in evidence system of the judge should be weakened, to the judge’s address should be clear and improved. The strengthen of the authority of judge has certain positive significance to the constitutional concept of the modern civil action - the right to request to the court. can protect the status of real equality of two parties, to security the realization of parties’main status in the procedures, can also ensure that the parties effetely involved in the process and the autonomy formation of results in the procedures, can prevent the surprise attack in procedure, can also realize the real significance of judicial neutrality, and even to ensure the economy and fast of the proceedings.Part IV: Re-positioning of the authority of judge in the institution transformation of China’s civil litigation. In the process of the institutional transformation of China’s civil litigation, we can learn from the judge’s positioning in the two legal system, to redefine the authority of judge. We should further strengthen the trial process management to let the court controls the proceedings; standardize the authority of judge in the election of evidence, to achieve the collaboration between the judge and the parties; perfect the right of judge to clarify, to regulate the exercise of judges when using it.

On the Location of the Authority of Judge and the Institutional Transformation of Civil Litigation

Abstract

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