Study On Non-litigation Of Litigation Cases

Nowadays, most civil law countries and regions around the world are rising tide ofnon-litigation of litigation cases. Practice has proved that the non-litigious proceedings injudicial practice, for resolving disputes simply and rapidly, appropriately, prevention of civildisputes, plays a unique and important role. In the procedural system dating back to theRoman period, according to the different characteristics of the civil nature of the event,there is a division of litigation and non-litigation cases, and the legislators have made differentkinds of proceedings for them. With the development of society, people’s awareness of the naturenoncontentious case and processing of non-litigious ways, in the civil law system, along with thebirth of non-litigious procedure codes, the process of non-litigation of litigation cases has alreadybegun. Definition of noncontentious case, noncontentious jurisprudence, alternate applicationbetween contentious jurisprudence and noncontentious jurisprudence,and such related issues likethose,in countries such as Germany, Japan and China’s Taiwan, scholars have carried out detailedstudies in present. This paper analyzes the extraterritorial legislative and judicial experience andhistory of Chinese judicial reform, use empirical analysis, historical analysis, comparative analysisand other research methods to explore the global trend of judicial reform in emerging non-litigationhearing, thus show basic concepts, system objectives and rules of procedure of non-ligtigation oflitigation cases. Through analysis reform practice in non-litigious proceeding of litigation casesoutside and domain, as well as drawing in the relevant research results, achieving simple, fast,inexpensive, accessible program as the basic goal, pointing to respect our judicial traditions andreflect the Chinese justice characteristics, the paper make some advice in constructing relevantprinciples and systems, in order to promote the country’s judicial reform and modernization.This paper consists of four chapters,100,000words.The first chapter using concept analysis tool,beginning with the basic concept and basicproblem of elucidation, conducted a preliminary, the general analysis of non-litigation oflitigation, mainly on the litigation proceedings, non-litigation origin, the division betweenlitigation and non-litigation cases, contentious jurisprudence and non-contentiousjurisprudence. In the first section, the distinction between litigation and non-litigation datingback to the Roman period, after the development of medieval Canon law, modern law, in theprocedural legislation in Western countries there were "non-litigious procedures" and "litigation proceedings". In local context, prior to China’s non-litigation and non-litigationprocedural laws not introduced, in order to make " non-litigation of litigation cases " havemore operational and explanatory power, the concept is defined as dealing with contentiouscases in litigation proceedings, the Court adopted non-contentious jurisprudence, such asdoctrine of function and power, written, no-public, simple, and so on. The second section isthe summary of the main points of distinction in non-litigation cases and litigation cases,analyzing the pros and cons of various viewpoints. This paper argues that the cases should bedivided into litigation and non-litigation cases according to current legislation. And that non-litigation cases can be divided into statutory non-litigation cases and potential non-litigationcases in accordance with current law. The so-called statutory non-litigation cases are that thelaw specifically provide applying non-litigation trial proceedings, and the potential of non-litigation cases are that have above features, the current law does not provide applyingnon-litigation proceedings or litigation proceedings,or applying the litigation procedurestraditionally. This view is similar to the German and Japanese Civil Procedure academia " theprovisions of substantive law ",the scope of the non-litigation cases will be considered bylegislators, but also set aside some space to some extent. Sections III and IV are mainlyintroduced the main contentious jurisprudence and non-contentious jurisprudence applied inthe course of hearing non-litigation cases,,and the basic theory of non-litigation of litigationcases-"staggered application theory". In Non-litigation process there is a variety ofnon-litigation jurisprudence form, different types of cases should apply differentnon-litigation jurisprudence in different ways.Chapter two, justifiable basis on which the non-litigation of litigation cases hearingbased, mainly be discoursed from the aspect of value theory, teleology, and jurisprudentialfunction of program. From the point of view of theory of value, fairness and justice,efficiency, equality and other values are a measure of rationality of a procedural mechanism.Whether from the point of justice, equality or efficiency, the non-litigation of litigation casesalso heard the basis of its legitimacy. The purpose of civil litigation system in differentsettings determine its different trends in the way of reform. On the analysis of mainstream,this paper considers the protection of the interests should be the purpose of the civil proceduresystem of our country. Based on this point, the mechanism of non-litigation of litigation casessuit the purpose of the civil procedure. From the view of the functions of the program, theprogram aims to achieve the correct and prudent referee, simple, rapid and economical referee, purpose, validity, prospects or created referees, in fact, either program goals requirethe use of some non-litigation jurisprudence, this demand constitutes the legitimateprecondition of non-litigation of litigation cases mechanism.The third chapter, the reasonable boundary of non-litigation, is protecting fundamentalright of parties. So-called limits of non-litigation is that not easily denied the fundamentalprocedure right. In the course of litigation proceedings, procedural fundamental rights includerespecting humanity dignity, legitimate right to be heard, the right to claim effectiveprotection of the rights and to claim the due process, etc. In these basic right, the protectionof humanity dignity, efficiency protection of rights and just procedure requests right areembodied various specific program rights, general can be performance as legitimate hearingrequests right and procedure selecting right. This article on the position of the proceduralguarantees, mainly discuss the ways and means of protecting both of the rights.The fourth chapter, to achieve the non-litigation litigation proceedings in our country,analyze the feasibility factors in establishing the mechanism of non-litigation of litigationcases, based on our judicial practice in reality. On the basis of analysis of the different type oflitigation cases and researching on extraterritorial legislation, design the non-litigationprocedural law in our country and build specific rules of non-litigation trial litigation,improve non-litigation trial litigation, systems and procedures. At present, the feasibilityfactors to establish the mechanisms of non-litigation trial of litigation cases include: thedemanding of resolving diverse types of disputes and adapting some types of cases in thelegislation, the conformation of theoretical basis of non-litigation proceeding, and so on. Themost recent revising of "Civil Procedure Law" also shows the legislators given attention to theneed for non-litigation proceedings. Legislators should improve the relevant provisions ofnon-litigation procedural laws, clear the basic principles and institution of non-litigationprocedures, to make the non-litigation of litigation cases proceedings achieve legal basis. Ofthe specific rules, the article explored the specific criteria and the basic principles innon-litigation proceedings. Several specific procedural issues are explored in this chapter,too.