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Civil courts in matters of investigation powers

Author: DuanZhenFeng
Tutor: ZhouQing
School: Zhengzhou University
Course: Procedural Law
Keywords: proceeding investigating proceedings by the court power justice litigant model improvement
CLC: D925.1
Type: Master's thesis
Year: 2009
Downloads: 42
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Abstract

Investigating proceedings by the court power in the civil action, refers to exist in the civil proceedings,does not need to wait for the litigant to put forward the request and application, the court must depend on the authority to carry on to investigate and to make the judgment the specific case fact. The issues terms include:The jurisdiction determination;the lawsuit important document;the lawsuit stops,the lawsuit ties fmally,sues merge and change;also the question of the sentences the strength;investigating proceedings by the court power in the public welfare lawsuit;as well as the court depends on the authority regarding the case entity evidence investigation. These facts investigated by the court power,is mainly related to civil litigation process can be set up or whether we should continue with procedural matters,and often involve national interests or the interests of third parties,have strong public good,the court in these specific issues to investigate and to judge the terms of the activities of the court.parties do not enjoy the right to dispose of these matters.Investigating proceedings by the court power has its unique existence value. First, justice is the most important value of law, Judicial justice includes substantive justice and procedural justice,Justice in procedure of civil litigation is a balance between substantive justice and procedural justice.the court investigates a matter of the investigation in accordance with the law is beneficial to achieve substantive justice and ensure equal attention of substantive justice and procedural justice. Second, according of the "Conflicts solving" in civil action,the aim of civil action is conflict’s compulsory solving. Investigating by courts’ power can achieve lawsuit aims,ensure procedure smoothly carried out and achieve conflict’s completely solution. Third, courts by their power to investigate special facts in cases makes procedure of civil litigation not stop becaure of parties’.it is beneficial to ensure litigation’s low costs and save judicial resources. In addition, investigative power by the court closely relates with the mode of civil action. Under authority doctrine litigant mode, judges enjoy bigger anthor power during in the litigation procedure; under party doctrine litigant mode, court power is much limited by parties pariticipating in litigation procedure and abides judicial negativeness principle. Those states of negative inaction causes the national judicial resources wasting and low efficiency, and also much influences on litigation process. Therefore, coutries adopting by either authority doctrine litigant mode or party doctrine litigant mode, begins paying attention to controlling procedures right by judges, and rules courts by their power to investigate special facts in cases during lawsuit procedures.Our civil procedure law is not well ruled on investigating proceedings by the court power, so it brings much difficulties to judicial practice, causes applicable confusion in judicial procedure, and is hard to ensure judicial justice and lawsuit efficiency. With the reference from foreign legislative practice, it has practical significance to improve system of nvestigating proceedings by the court power.Firstly, judges should change thought idea formed for a long time. Take the initial to investigate the facts which need be investigated by the court can ensure fair proceedings and litigation of economic. Thought idea towards objective things embraces the dynamic anti-role and can direct human action,changing thought idea is the ideological foundation of system improvement.Secondly, investigating proceedings by the court power exists all stages of litigation procedure. Improving the system of nvestigating proceedings by the court power firstly should improve basis corresponding law system in civil procedure law. For exemple, public interest litigation system and res judicate system blank or loss in our civil procedure legislation directly causes on proper laws to abide by in investigating proceedings by the court power during public interest litigation procedure, and adjudged force’s investigation also faces to the same condition.Thirdly, it should improve our detailed system. In our civil procedure law, jurisdiction questions, actionable condition reviewed, suspension of litigation, termination of litigation, changing of actions and joinderring of actions, public interest litigation and non-contentious cases’ investigating proceedings by the court power should be improved .Clearly definiting range and procedure of judicial investigation right will provide system basis for judicial practice.Finally, it should clearly definite judges negatively exercising their power or inappropriating power application that causes legal consequence of the parities’ rights damaged. If any power exercising lacks relief measures, system will be in vain. Investigating proceedings by the court power should be investigated by courts’ power not by parties’. Judges negatively exercising their power will cause lawsuit delay or damage the benefit of the country or the parties’. If the court does not abide by proper laws to exercise power and excess intervention of cases’ process, it will damage the parties’ right. It should clearly definite legal consequence and legai liability to these kinds of judges’ acts. Because judges negatively exercising their power or inappropriating power application damages parties’ rights, it should grant both parties’ right of appeal, remand for new trial through the court to correct the wrong decision and realize the relief of right.

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CLC: > Political, legal > Legal > Chinese law > Procedural Law > Civil Procedure Law
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