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Defense Invalidity research

Author: ZhouMi
Tutor: SongChaoWu
School: China University of Political Science
Course: Procedural Law
Keywords: defence the system of losing effect of defence the defence be putting forward any time
CLC: D915.2
Type: Master's thesis
Year: 2006
Downloads: 231
Quote: 3
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Abstract


The ideal construction is that the party and lawyer prepare sufficiently in the civilpretrial procedure, to decide the controversial points and to fix evidence, and then thejudge could makes it?ˉs easier to trial in a centralized way. The key to promoteprocedure is to perfect the pretrial. At the amendment of current Chinese civilprocedural law, the legislation has ruled the time limited of submitting evidence, butthe system of losing effect of defence has not been established till now. Many countries in the world rule the system of losing effect of defence directly orindirectly, in order to limiting the legal time of defence act and fixing the controversialpoints. But Chinese civil procedural law adopts the defence could be putted forwardany time, many problems has been appeared in judicial practice. Therefore, we shouldconstruct the system of losing effect of defence, which suit for our statement, forperfecting the civil pretrial procedure, resolving difficulties of delayed procedure,realizing the dispute resolution unitively. But the system of losing effect of defence hasneither been established in our country?ˉs civil procedural law, nor been researchedtheoretically sufficiently, especially the specific construction of this system .Therefore,the author tries to founding the losing effect of defence as a system.This article is made up for five chapters: Chapter one is the summary of the basic principle of the system of losing effect ofdefence, involving the concept of defence?￠losing effect and losing effect of defence,and on the basis of analyzing the theories which discuss the legal character of defenceact, the author claims that the defence act is the right of the defendant, but we shouldlimit this right by means of losing effect.Chapter two is the commentary of the system of losing effect of defence betweenthe system of common law and the system of civil law. Through the historicaldevelopment and the current legislation of these countries and areas, we can find thedifferences between the two legal families and the reasons of these differences. Theseviews will be of great value of construction of the system of losing effect of defence.Chapter three is the statement of historical development process?￠the currentlegislation and the problems of judicial practice about the system of defence in ourcountry. This article also reflects the reason of the defence could be putted forward anytime, which may provide the current basic.,and contradicts the challenge factors offoundation of losing effect of defence, clearing up the barrier of theory and practice.Chapter four mainly introduces the proper meaning of the system of losing effectof defence and introduces simply the theoretic basic, concerning the economy ofprocedure;the balance of procedure;the accommodation with the system of losingeffect of evidence and the correspondence with the legislation revolution of othercountries.Chapter five is the central one, mainly concerning the construction of the systemof losing effect of defence in China. The material ideas are as follows: constructs thegeneral ideas of the system of losing effect of defence;constructs the specificprocedure of the system of losing effect of defence;puts forward the suggestion of thestructural elements?￠the content of defence and legal time limit and discusses theexceptional status;introduces the principle of mutual loyalty and the interpretationrights.

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