A Study On The System Of The Cause Of Civil Action

The system of the cause of civil action is the product of long-term development of China’s legal history, dating back to the Qin and Han dynasties. So far, this specialized theoretical research was very few. As a starting point, this article at the first time in-depth explore the many theoretical and practical issues of the cause of civil action system, construct the basic theory of a cause of civil action, the empirical study and the development of a cause of action civil system and complete China’s system of the civil cause of action by the use of large amounts of data, charts, qualitative and quantitative analysis, from the theory, practice and institutional provisions, around an overview of the theory of a cause of civil action, such as the definition of a cause of civil action, characteristics, classification, elements, the relationship between cause of civil action and related concepts, a cause of civil action to determine, the function of a cause of civil action, a historical origin for the system of the cause of civil action, the comparative analysis of the extraterritorial similar system with a cause of civil action, a cause of civil action’s system status and problems as well as a cause of civil action system development and improvement.Besides the introduction, this article is divided into five chapters:first chapter, Overview of the cause of civil action; second chapter, Historical survey of our system of the cause of civil action; chapter three, Introduction and review of the extraterritorial similar system; chapter four, the status quo and practice examine of China’s system of the cause of civil action; chapter five the development and improvement of China’s system of the cause of civil action.Introduction clarified a brief description of the background of the writing of this article, including the purpose, meaning, domestic and foreign research status and trends. A more comprehensive interpretation was shown from four aspects of the background, the significance of the topic, the research methods and the research status and trend, and the necessity and importance of the cause of civil action system’s study was expounded.The first chapter is an overview of a cause of civil action. Of the content of the following four areas:the definition of a cause of civil action, characteristics, classification and constitute, the relationship between the elements of a cause of civil action and related concepts, the function and the determination of a cause of civil action. First, the definition of a cause of civil action, characteristics, classification and elements were introduced, the essential characteristics of the cause of action and a cause of civil action were summarized and scientific defined. Second, the relationship were investigated between of a cause of civil action and the litigation, the concept of the claim, the subject of litigation, a cause of litigation, the focus of controversy, the case name, case type, an summary cases the reasons and causes of action. This enriched the system’s theory of a cause of civil action. There are many types of civil of cause action, according to different criteria. This chapter details a cause of civil action of several classification methods and a specific cause of action types divided according to each method. Further, the determine system of a cause of civil action was analyzed, and a more detailed presentation and discussion was given from the aspects of principles, methods, standards, subject, time to determine a cause of civil action. Finally, the system function of a cause of civil action, especially the role of the cause of action civil system in filing system, jurisdiction system, the proof system, applicable law institution, the right of aufklaerung system and res judicata system was analyzed. First, the function of a cause of civil action on the conflict in the main body is mainly manifested in the proceedings:the basis and facilitate of litigation for the parties, significant relationship between the extent of protection of the interests of the parties, a significant impact on the proceedings, a certain extent effect to the contribution to the parties the burden of proof, and effective regulation of the parties abuse complaints. Second, the function of the cause of civil action on the trial of the main body was mainly followed:from the view of the important role of the Court, the cause of civil action is the core of the civil case filing, an important criterion for determining jurisdiction, a main reference to determine the internal division of the Court and the deployment of judicial resources, an important scientific basis for file management and the Court of Justice statistics. The cause of civil action has guiding role of the judge:the important basis of the judge hearing the case, the facility to exercise the right of aufklaerung system, the guidance to correctly apply the law and a reasonable regulation of the jurisdiction.The second chapter is about the history of China’s system cause of civil action. Early in the Qin and Han dynasties, people get used to refine language to summarize the dispute between the parties, In Song’s,"Yuanyou" appeared civil judgment, petition format was standardized, and official scrivener system and "word of litigation" had emerged. The cause of action in civil judgments was demanded in Yuan Dynasty. The range of cause of civil action increased, and litigation was further standardized in Ming Dynasty."Zhuyu" prevailed, and "Zhaoyou" system had been established. The early Qing Dynasty the regulation of "trivia" and "Tangduan" that is a cause of civil action as the socio-economic development shown there." Tangduan" was further diversification in the late Qing Dynasty civil procedure.. In the modern times, by the late Qing Dynasty’s amending the law, the cause of action was distinguished into the Penal and Civil action. The Government of the Republic of China in the Six Laws promulgated the "cause of action" name officially used in practice, the head of the verdict to specify the cause of action. The Shan-Gan-Ning Court followed the system of cause of action by the National Government, and improved the system further practical diversity. After the founding of New China, China’s mainland has inherited the essence of China’s civil cause of action system, July1955, the preliminary review on the high and intermediate People’s Court civil cases in the three major cities of Beijing, Tianjin, Shanghai provide the concept of cause of action at first time. Civil Procedure Law in the People’s Republic of China on October1,1982(Trial),(hereinafter referred to the "Civil Procedure Law (Trial)"), norms on cause of civil action and marks the first regulation of the system of cause of civil action in civil law. In1988, the Supreme People’s Court cleared the definition and determination of a civil cause of action for the first time in the relevant provisions. The cause of action in civil cases2000(Trial), referred to as the cause of action (trial), implemented and indicated that the specification, refinement and the formal establishment of the system of cause of civil action. The cause of action in civil cases2000(Trial), referred to as the cause of action (trial), was introduced in2008, remarking the development of China’s system of the cause of civil action. The cause of action (trial)’s modification in2011, indicated our system of the cause of civil action has been founded.The third chapter is the introduction and review of extraterritorial similar system. First, the system of civil law countries and regions such as France, Germany, Japan, Russia and China’s Taiwan region was introduced, and followed by the introduction and description of the similar system in the United Kingdom, the United States and other major countries of the common law system. On this basis, a the extraterritorial similar advantages and disadvantages of the system and the nature of extraterritorial experience for our system of cause of civil action were further revealed, and further theoretical research, practice and exploration and development of the system were given the experiences.The fourth chapter is an investigation on the status and practice of China’s system cause of civil action. On the system requirements, a brief provision and review was proposed on the cause of civil action, and that the current main problem was pointed out:First, about the basic theory, historical research is unknown, the definition is fuzzy, specific function is unclear, institutional features and relationships were indistict. Second, the system is not very reasonable. A longitudinal classification is not standardized, the horizontal classification is not uniform, and the types are not completely included. Third, about the system of determination, principles for determining have the defects, the standards to determine have confusions, the method for determining have lacks, cause of action and concluded the cause of action contradictions, and determination of main body is unreasonable, as well as the increase and change of the claims of issues, the determination of the cause of action, and the determination of the cause of the new derivative legal relationship and the new cause of action. In addition, the system’s lack of a cause of civil action is also reflected in the limited use range. Then this article analyzes the main causes and hazards of the current system’s running sluggish. There exist both of objective reasons and subjective reasons, and there are both of historical reasons and practical reasons. The combined effects of a variety of reasons not only undermine judicial authority, also greatly reduced the civil litigation efficiency, weaken function of the system of a cause of civil action. Finally, the empirical analysis of the system of cause of civil action was carried on. Practical operation of the system of cause of a civil action was comprehensive discussed by ten first-class civil cause of action more than six decades of historical development trajectory with30charts and a large amount of data on the informative practice research and problem analysis.The fifth chapter is the development and improvement of our system of cause of civil action. Firstly, the value orientation, the purpose and characteristics of the system of a cause of civil action was discussed. Secondly, a new system was constructed in the framework of a cause of civil action that increased the provisions of the General Provisions on the basis of the cause of action. And four of the cause of action system became into five cause of action system. The first stage of the cause of action in accordance with the new classification was redraw and a new cause of action type was added. The level of the part of the cause of action was adjusted. Cause of action on the second level, third level and the fourth level was respectively adjusted in accordance with certain rules, and some of new fourth and fifth stages of the cause of action types were added for the judicial practice experience. So the future of the cause of civil action will have the correct value orientation, clarity of purpose, distinctive characteristics, comprehensive, reasonable classification and complete system. Specifically, the system of the cause of civil action provides a General Provisions and six sub provisions’system composed of seven parts. General Provisions included the main purpose, the system of the cause of action, the range of use, remedies of error cause of action, determination of a clear cause of action when competing standards, regulation cause of action and so on. In sub-part, the main basis for each type of cause of action reflects the nature of the legal relationship, and the provisions of the entire cause of civil action is divided into six first-class cause of action, such as the cause of action of civil disputes, of commercial disputes, of intellectual property disputes, maritime disputes, of cases that are applicable to special program and of enforcement procedures. When General Provisions as the first series, the first level of the cause of action above were arranged by Part Ⅱ-the cause of action of civil disputes, Part Ⅲ-the cause of action of commercial disputes, Part IV-the cause of action of intellectual property disputes, Part Ⅴ-the cause of action of maritime disputes, Part Ⅵ-the cause of action of case applicable of special program, and Part Ⅶ the cause of action of enforcement procedures. Under the first level of the cause of action, the second, third, fourth, and fifth level of cause of action were specific descripted in brief from the aspect of the entire system.