Dealing With Civil Default Judgments

Civil default judgment system is a special and important system different from judgment inter parties. Making an intensive and systematic research on this system not only have the important theoretical significance for this system having closely connected with civil procedural value, idea and structure, but also have the important real importance of solving civil disputes fairly and efficiently, with the rate of default judgment going up gradually and legislation and practice of this system having many problems. This dissertation covers 167000 words except for the introduction and conclusion, and can be divided into five chapters, every chapter being as follows.Chapter One is "the basic theory of civil default judgments". This chapter analyzes the basic theory of civil default judgments which establishes good foundation for later exposition. On the basis of connotation of default judgment, this chapter focuses upon procedure justice and injustice of default judgments, legislative mode of default judgments, and respectively deals with in detail the theoretical basis of civil default judgments from visional angle of legislative mode. Default and default judgment shall be defined from the wide angle of pretrial procedure and court trial procedure. The writer puts forth that presence is the right of the defendant and pleading is the obligation of the defendant. Default judgment system has its own due process, but this system conflicts with substantive justice and other values since this system is an exception to judgment inter parties after all. Query on the prevailing mode of the default judgment doctrine and the one party debating doctrine in current theoretical circle, the dissertation puts forward the idea of mono-check mode and both-check mode, and analyzes their own theoretical basis. Theoretical basis of mono-check mode in court trial procedure is strictly observing direct verbal principle, litigants’obligation of stating the facts truly and promoting action, and the basic requirements of empirical rule. Theoretical basis of mono-check mode in pretrial procedure is adversary procedural mode, institution of procedural prescription, binary structure in pretrial and trial court procedure. Theoretical basis of both-check mode is relatively pursuing substantive truth, taking procedural security into account, and combination of verbal and written principle.Chapter Two is "the historical evolution of civil default judgments". Litigation system is a historical product, so the present system can not be correctly understood without knowing history. Based on "first foreign country then China", this chapter examines the historical evolution of default judgments. Firstly, the dissertation examines default judgments from Ancient Roman to contemporary times. The dissertation respectively deals with this system of legis actions, formula and extraordinaria judicia, and generalizes the characteristics of this system based on a large number of documents and papers, through a clue of summons, judgment and remedy procedure, thus concludes that the defaulter does not necessarily mean losing the case, and that the legislative mode of default judgments experiences a conversion from mono-check to both-check in Ancient Roman. And the dissertation further analyzes in detail the social background of this conversion. Then five basic characteristics are summarized and elaborated directing at the development tendency of modern default judgments. Secondly, the dissertation discusses default judgments from ancient to modern times in China. Judgment inter parties is a basic system in ancient Chinese procedure. The law provides many measures which secure the defendant to court, so default judgment system is not stated in detail. But the Mongolian grassland law of the Ming Dynasty directly set down the default judgment, and criminal code in Ming and Qing Dynasties indirectly provides the default judgment in a joint crime. Although the ancient law does not provide default judgments, default in procedure sometimes is unavoidable, thus arises the question how the judge deals with the case, so the dissertation examines how the court deals with the case with one party not appearing in court, for example, civil mediation through governmental approval, the defendant compelling the plaintiff to abandon the action owing to the defendant’s refusing to court, the court taking delayed measures to achieve discontinuance of action. Meanwhile, the writer analyzes the social background why the ancient law does not lay down the default judgment. Through examination of this system in Chinese modern times, some following ideas are put forward. Default judgment is provided for the first time and comprehensively in Civil Procedure Draft in Qing Dynasty. Civil Procedure Regulation takes different way in accordance with different default excuse. Anti-Japanese base areas laws provide the court has the power to take coercive measures to the defaulter. The liberated areas laws have the default judgment which is applied in exacting conditions.Chapter Three is "constitutive factors of civil default judgments". Home systems can not be known full well without knowing foreign systems. So this chapter analyzes constitutive factors of civil default judgments in foreign countries which include procedural condition, substantial requirement, applied procedure and remedy way. The dissertation first analyzes the procedural elements which are easily neglected in previous research. The judge can not make a judgment until the procedural elements are within the law. The judge shall examine evidences whatever in pretrial or court trial procedure, the difference being the degree and range of examination. All this further proves that the idea which the defaulter loses the case with not appearance is wrong. Meanwhile, the dissertation respectively elaborates on the default procedure of main countries in two legal systems, and concludes briefly in a table. Default judgment has three remedies, namely dissident remedy, appellate remedy and dual remedy. Condition and process of dissident remedy are discussed mainly in main countries in two legal systems, and are generalized briefly in a table. In the same time, the dissertation expounds remedies of default judgments in Federal Rules of Civil Procedure and Texas Rules of Civil Procedure, and makes a theoretical analysis of action of flaw declaration of will.Chapter Four is "legislative and practical status of civil default judgments in China". Chinese issue shall be the ultimate aim on which every Chinese conducts academic research. This chapter analyzes legislative and practical problems, and next chapter makes the suggestion. This chapter deals with legislative characteristics, legislative shortcomings, practical operation, and finally makes a theoretical analysis of current problems. Legislative mode of default judgments in China belongs to double-check mode, and default judgment system is suitable for ordinary and summary procedure and is made in court trial, the judge having rigorous requirements for evidences. Meanwhile, this system has four shortcomings in condition, procedure, remedy and accessary system. Based upon the practical survey the dissertation analyzes the subjective and objective causes in the absence of the defendant, deals with practical characteristics of default judgments, and this system plays an important role in judicial practice and faces with main problems. Finally the dissertation takes a theoretical analysis of major problems, namely the proof standard of the objective truth, the principle of equality not being carried out effectively, litigants’right of disposition restricted to jurisdiction, adversary principle not being legally binding.Chapter Five is "legislative perfection of civil default judgments in China". This chapter makes thoroughly researches on legislative mode, how to deal with the case when a defendant refuses to plead in pretrial procedure, the institutional design of trial by default and how to prevent the default judgments. Firstly, the dissertation briefly analyzes the merits and demerits of two legislative modes, then presents that it is not suitable for establishing implied admission system in the absence, and that the judge should examine evidences essentially. But it’s good establishing conditional dissident remedy in which the cause, condition and check are discussed. Secondly, procedural elements of default judgments are analyzed, in which the time and behavior of default are reconsidered. The writer puts forward that the time of default shall be defined from the beginning of judicial inquiry to the end of judicial debate, and that behavior of default does not include what the defendant appears without defending. Thirdly, directing at defendant not pleading in pretrial procedure, some people think it necessary to establish default judgments in pretrial procedure. The writer intensively and systematically analyzes that it is not available for establishing default judgment in pretrial procedure, and concludes that compulsory pleading system shall be provided in China. Fourthly, this chapter deals with the procedural design of default judgments in complicated action. The writer thinks that default judgments of necessary joint action and ordinary joint action shall be provided. Rethinking upon the important problems in default judgments of third party in litigation, the writer expounds how the court deals with the default of the defendant third party and the assistant third party. Meanwhile, the characteristics and trial of representatives’absence are discussed. Fifthly, how to prevent the default judgments is discussed, namely perfecting announcement service, strengthening obligation of elucidation, exploring pluralistic dispute resolution mechanism and regulating exercise of litigant rights.