Litigation Raid And Its Legal Regulation

The procedures legal ideology requires in the civil procedure law a clarified and unified prescription of the sine qua non of the tenability and effectiveness of litigation activities, which should be conducted orderly and in strict accordance with the condition, manner and steps provided by the law. Obviously this is in an attempt to "format" all the legal procedures in a prescribed "track" and to provide an objective standard: should it be formally in line with the law, the action is to be considered legal. However, the litigation procedure is a dynamic intertexture, all of which, due to the imperfectness, abstractness and rigidity of statute law, cannot be definitely prescribed even by the most meticulous code. As a result, litigation maneuver is nevertheless possible. Because of the diversity in the configuration of rights and obligations, in the objectives of the litigation, and in the choice of litigation manners, as well as of the differences in the benefit consideration, situation judgment and the common litigation viewpoint, some behaviors of the litigation subject may not necessarily lead to the realization of dispute-solving function. Moreover, as has been proven by the legal practice, it may even hinder the effective and stable operation of the procedure, of which, a typical instance is litigation surprise.Attention to the formalities of civil litigation does not mean the complete ignorance of substantive justice in its content. The litigation procedure is not only a defense of the legal rights of the citizenry, but also a demonstration of goodwill and reason. It is not merely to ensure a fair solution of dispute, but also to keep an efficient mechanism and a stable order. Currently, the academic circle is mainly focusing on the conceptual aspect of civil litigation. Deep and detailed research, especially the research into litigation surprise is far from sufficient. However, legal practice calls for a theoretical study of litigation surprise, which should be an important subject in the science of law.This doctoral dissertation aims at a systematic study of litigation surprise. Base on the sporadic studies conducted by scholars in this respect, this dissertation gives an expatiation upon the content, the essence and the components of litigation surprise. With a causal analysis from a variety of perspectives, it expounds and proves the legal principles in exercising control over litigation surprise. Through a comparative study of the two legal systems, this dissertation proposes to adopt legal constraints to deal with litigation surprise. By perfecting the system and establishing certain rules, a coercing, rectifying, sanctioning and encouraging mechanism can be constructed to ensure the low frequency and low intensity occurrence of litigation surprise, and consequently to ensure a efficient and stable procedure of litigation process to provide justice in dispute solving. The dissertation consists of an introduction and six chapters, approximately 150,000 words.The Introduction part provides the reasons for the choice of the subject. Relevant problems in legal practices and the insufficient current studies conducted by the academic world in this respect have attached great importance to the research into litigation surprise, either in theoretical or in practical sphere. Such a research will deepen and widen the theoretical study of civil litigation in China. It will also contribute to the perfection of China's law-making practice in civil litigation as well as to the effective legal constraints on litigation surprise. The dissertation makes a literature review of both domestic and foreign sources and applies the methodology of empirical analysis,comparative analysis and economy analysis.Chapter One is entitled "Empirical Research into Litigation Surprise". It firstly "outlines" the different forms of litigation surprise from the perspective of case study, and thereafter points out the core subject of the dissertation. Secondly, it makes a brief introduction of the research subjects and the methodology applied. Thirdly, it sums up the result of the empirical research, which demonstrates the existence of litigation surprise in current civil or business lawsuits. Litigation surprise brings negative and destructive influence on the operation of civil procedures and is contrary to the pursuit of justice, efficiency and order. Litigation surprise deteriorates the environment of litigation mechanism and results in instability and unbalancedness, which hinders the dispute solving function of the litigation mechanism. Litigation surprise distorts the exertion of the right to file lawsuit and the right of jurisdiction and results in the delay of the litigation, the rise of the cost, the complication of the process and the unexpectedness of the outcome, which degrades the credibility and acceptability of the judgment. The existence of litigation surprise is due to the system deficiency of institution configuration and rule making, as well as the economic, ideological and psychological factors. The subject of litigation surprise includes the party and the court.Chapter Two is entitled " Major Issues of Litigation Surprise", which consists of four parts. Part one is about the content of litigation surprise. The dissertation holds that in the specific environment of litigation, litigation surprise refers to the litigation subject's intentional or unintentional action that results in any unexpected change of the litigation procedure, which would be otherwise stable and orderly. Part two is about the essence of litigation surprise. The dissertation recalls the theoretical evolution of litigation and expatiates on the relation between litigation surprise and litigation activity. It points out that the essence of litigation surprise is, from the perspective of the relation between litigation subjects and relation of civil procedure law, a kind of litigation activity. Part three is about the characteristic and significant factor of litigation surprise. The dissertation proposes that the main factor of litigation surprise is its subject. Considering the initiating, processing and its consequent litigation result, the subject of litigation surprise should be the party and the court. The subjective factor is the psychological reaction of the action in the mind of party, which shows the subject's psychological status when conduction litigation surprise. There can be two major types. One is deliberate conduction of litigation surprise. The subject is aware of the consequence and expects it to happen. The other is unintentional litigation surprise, in which case the subject overlooks the possible consequence. The objective factor, in the macro perspective, refers to the activity's deviation from the pursuit of justice, order and efficiency, which hinders the effective operation of the litigation and lowers its dispute solving function and social effect. In the micro perspective, litigation surprise not only harms the rights and interests of the party, but also results in the complication and unexpectedness of the lawsuit, which increases the cost of the litigation procedure. Litigation surprise violated the proper relation or interests which should be legally protected. The dissertation points out that there are four characteristics of the litigation surprise: (1) it has specific agent, which is either the party or the court; (2) it has specific aim, with regard to the judge, litigation surprise means the judge's over-emphasis on the decisiveness of jurisdiction power, which is a result of imperfect litigation rule or system and which deprives the party of his/her full participation in the process; with regard to the party, it refers to the maneuver of legislation loopholes and litigation controversies to delay the process, raise the cost, and increase the complexity and unexpectedness so as to seek gains or reduce losses; (3) it has formal legality and unexpectedness, which exhibits a proper conduct of legal right or jurisdiction operation that is hard to be identified, prevented or constrained due to the imperfectness of the current system. (4) it has negative consequence, which means the litigation deadlock, disorder and high cost, resulting in hostility that deprive the party of their full participation, and the judge, their free proof. Part four is the types of litigation surprise. The dissertation classifies the litigation surprise according to its subject type, namely, litigation surprise from the court and litigation surprise from the party. It points out that the former mainly refers to abrupt judgment which is made without carrying out the obligation of elucidation and which is not in accordance with the facts of the case and relevant laws. The latter refers to the party's behavior resulting in abrupt changes in the otherwise stable litigation procedure. Besides, litigation surprise can also be classified according to the subjective motive into deliberately and fault litigation surprise.Chapter Three is entitled " Causes of Litigation Surprise". It attempts at a relativelycomplete analysis of the factors that cause the occurrence of litigation surprise from theperspective of subject types. The dissertation holds that litigation surprise from the courthave four causes: first, the judge's understanding of the litigation purpose, which isusually a sensitiveness and fear of responsibility that will lead to the judge's overemphasis of the final decisiveness and ignorance of the major role of the agent concernedin litigation process. Second, the imperfectness of the current litigation system, whichignores the pleading process with insufficient legislation and the imbalance obligations ofplantiff and defendant. It has become a common phenomenon that defendant does notsubmit or delays to submit or improperly submits written answer. The pre-courtprocedures are always ignored and the limited information makes it impossible for thejudge to have a reasonable expectation of the suit.the absence of the system of publicity ofjudge's free proof. The current legislation has no specifications about the publicity of thejudge's free proof in terms of its condition, manner, scope and effect. Seldom does thejudge publicize his proof. Third, the closedness of judge's free proof. Due to the fact thatthe judge's free proof is a psychological process which is related to the judge's cognition, comprehension and judgement of the facts involved in the case and to the judge's logical analysis, induction, analogy and deduction, it is hard to be perceived by the party. Fourth, the self-position of the government official. Influenced by the official ranking consciousness, the judge frequently has a superior self identity thus unwilling to publicize the process and result of his proof. The dissertation analyzes the litigation surprise from the party as having six causes. Firstly, the viewpoint about lawsuit and interest in a market economy. The dissertation holds that due to the characteristic of the current era, once the dispute is put on court, the party sees it as a competition to determine and allocate certain interests or benefits. Guided by such a principle, litigation surprised aimed at maximize the gains becomes one option for the party. Secondly, the absence of the necessary rules in the present system. The dissertation holds that there exist in China's legislation certain blind area. The rules concerning time limit of testification and objection of jurisdiction cannot eliminate litigation surprise. Thirdly, moral risk under information asymmetry. The dissertation holds that due to the asymmetrical distribution of the litigation information and the relation between behavior option and gains, the party may make converse choices to seek improper gains. Fourthly, cost and effect consideration. The dissertation points out that due to the optional characteristic of the litigation conduct and the asymmetrical distribution of information, the party cannot make rational cost and effect calculations. Once the procedure and the result exhibit any uncertainties, litigation surprise is to be motivated by the maximization of gains. Fifthly, the psychology of the party. The dissertation proposes that litigation surprise is a reflection of the party's speculating psychology in an attempt to seek gains by taking advantage of the loopholes or blind areas in the system. Sixthly, the impact of the lawyer. The dissertation points out that though the lawyers are to maintain justice, but they cannot avoid economic purpose. Under the pressure of competition and their client's desire to win, formally legal activities such as litigation surprise is to be undertaken by the lawyers.Chapter Four is entitled "Legal Principles about the Constraints of Litigation Surprise." This chapter expounds the legal principles that can be applied in the constraints of litigation surprise. Firstly, the dissertation proposes that sufficient and clarified information should be provide for the litigation subject so as to promote the stability and reduce the uncertainty of the process and keep a dynamic balance. Effective communication should be achieved to guide the litigation subject to make decisions in accordance with the system so as to control the motive of speculation and reduce the possibility of litigation surprise. Secondly, the dissertation proposes that the party should have the right to get information. The information should be transmitted efficiently in a mutual-trust system so as to conduct sufficient and validate defense and offence, eliminating the uncertainties of the procedure. The party should be enabled to predict the process and result of the judge's proof, so as to ensure a substantive participation in the lawsuit and influence of the final judgment. The dissertation points out the judges directing function should be established aiming at the goal of substantive justice. The asymmetric information distribution should be adjusted in a reasonable scope in order to ensure communication and to predict and rectify the litigation option, and consequently to reduce the uncertainties. Thirdly, the dissertation proposes the obligation of the party should be clarified so as to ensure a one-time solution of the dispute. The effectiveness and the completeness of the defense and offence should be guaranteed, and the meaningless cost should be avoided. Simultaneously, the judge's obligation to promote the litigation should be clarified centering on the publicity of judge's free proof. The judge's action should be expected and accepted by the party so as to eliminate the motive of seeking improper gains. Fourthly, the dissertation holds that litigation procedure should have expectability and credibility. An expectable procedure can not only enable sufficient information transmission, rule making, procedure advancement and order and stability, but also enable the litigation subject to make rational choices and adjustments, control speculation tendencies, inspire honesty and improve the efficiency of dispute solving. The credibility of litigation procedure should be based on the interactive relation between the litigation subjects. Unexpected behaviors should be limited and punished. The party should be given sufficient opportunity in the defense and offence process to inspire their active and effective litigation behavior. Reasonable expectations of the process and result of the judge's proof will enable the judge to make their decision closer to truth and more reliable. Fifthly, the dissertation proposes that the party in a harmonious society should not view the litigation process as a pure competition but as a institutionalized and obligatory activity that must be conducted sufficiently and effectively.Chapter Five is entitled " The Two Legal Systems' Strategic Choices Concerning Litigation Surprise", which makes a comparative study between the two legal systems from the perspectives of concept evolution and strategic choice. Due to the case law tradition, the common law system does not have any systematic expatiation of litigation surprise, which is now focused on because of the practical problem it caused such as delay in litigation procedure and increase of litigation costs.In this respect, countries of the common law system define litigation surprise from the party based on the idea of procedure propriety. With regard to the judicatory sphere, system planning and rule making are applied to control litigation surprise. The three separate but interdependent procedures of pleading, discovery and pretrial conference are used to exercise legal control over litigation surprise. The judge's discretion and administration of the cases are enhanced and so is the obligation of the party to promote the litigation. A "platform" is set up for the litigation subjects to conduct sufficient and effective information exchange so as to make the litigation procedure and result more predictable. In countries of the civil law system, concerns of litigation surprise starts from the civil entity law's recognition of power abuse. The independence of litigation right and the expansion of honesty principle in the civil procedure have enhanced such concerns. The theoretical base for the constraint of litigation surprise is the demand of a proper and honest conduction of litigation right. As the focus of legal protection turns in the direction toward an equal attention to individual and social interests under the legal theory of social standard, the abuse of litigation right is gradually attracting attention and acquiring independent meanings in procedure law. The Japanese litigation study circle also dissertates litigation surprise from the perspective of abuse of litigation right, i.e. if the party has litigation right but conducts with malice or other improper intention, he/she will be regarded as dishonest and will be subject to legal constraints accordingly. In the judicature sphere, the civil law system enhances, on the one hand, the directing function of the judge to establish a cooperative litigation module via the efficient and pertinent procedure of legal elucidation and the publicity of judge's free proof. On the other hand, it encourages the party to fulfill the obligation of promoting the litigation via the establishment of honesty principle and relevant legal consequences. It attempts to reduce the occurrence of litigation surprise by standardizing the litigation activities through the system of proof- right - losing, duty charge, and pre-court procedure.Chapter Six is entitled "Legal Constraints of Litigation Surprise". The dissertation holds that a perfect litigation system should guide the litigation subject in its choice making through the establishment of a balanced configuration of rights and obligations. Relatively complete information supply through a communication mechanism should be ensured to make the cognition, evaluation and determination of the litigation subject to tally with the legal purpose, hence to eliminate the uncertainties in the process and result of the litigation. The litigation surprise should be confined to the trial of first instance with low frequency and low intensity. Its negative influence and its impact scope should be reduced. The dissertation makes three proposals with regard to this: One is the mandatory mechanism in reply to litigation surprise. Through the perfection of the pleading procedure, the party is required to present in the written petition complete appeal and detailed account of relevant evidences; defendant reply should be conducted before court procedure in written form and should be responded to accordingly. Written answers, court debate and meeting presided by the judge should be adopted to elaborate the evidence exchange and issue arrangement. All these procedures should be completed before the court session, and the party is not to propose new measures of defense and offence. Issue arrangement should have constraint over the party and the judge. The proposing party should be responsible for any skip of the issue arrangement. A second proposal is the establishment of rectifying mechanism in reply to litigation surprise. The judge's obligation of legal elucidation and notification should be pinpointed, which requires the judge to inform the party of their rights and obligations, the composition of the court, the risk of the litigation and other issues related to the procedure. The judge should also elucidate the litigation appeal, evidence proposal and admittance, and the legal standpoint in accordance with the legal conditions. Possible litigation surprises are to be rectified through questioning and reminding. The judge should also, within the reasonable expectation scope of the party, prudently publicize the procedure, result and reason of his free proof, making sure that the winner is the right one and the loser deserves to lose. Apart from this, the verdict should provide explanations on the relation between the case fact and the legal provisions. A third proposal is the establishment of punitive mechanism. The legal consequences of conducting litigation surprise should be clearly defined so as to restrict the litigation subject's motivation to adopt litigation surprise. For instance, if defendant not to give reply or to submit written supply before the time limit, the judge should give legal elucidation. If defendant still refuses to reply , defendant can be taken economical sanction. With regard to the judge's failure in elucidation or improper elucidation, once the objection by the party is recognized, the litigation procedure should be resumed to the stage where the court should provide legal elucidation. Besides, the court should make a written record of the content and manner of the judge's legal elucidation. A fourth proposal is the establishment of an encouraging mechanism, which gives positive benefit and appraisal to the party who positively promote the litigation and the judge who actively publicizes his free proof and properly carries out his directing function, hence makes the litigation subjects willing give up the choice of litigation surprise.