Research On Civil Judicial Orders

Civil judicial orders refer to the general term for a series of oral and written orders issued by judicial organs in civil judicial activities based on their powers or on the application of the parties.Civil judicial order is an important concept in the law of civil procedural of common law countries,and it is also an important part of the civil judicial system of such countries.The judicial organs of common law countries take advantage of the convenience,economy and flexibility of the civil judicial order system to actively optimize litigation procedures in judicial activities,provide temporary relief,protect public interests,promote social ethics,and safeguard national judicial sovereignty.In view of the significant advantages of civil judicial order as a civil litigation system,various civil law countries including our country have used this system for reference and introduction to varying degrees.In recent years,our country has successively tried to construct a series of civil judicial orders such as Restraining Order,Document Submission Orders,and Civil Investigation Orders(Lawyers Investigation Orders),which has set off a wave of exploration in the theoretical and practical circles to establish a civil judicial order system.The establishment of the Personal Rights Prohibition System in the "Civil Code" has pushed this upsurge to a peak.However,the above-mentioned systems exploration are largely focused on the specific system form rather than the overall theoretical construction,that is,the research on its partial system framework for the purpose of legal transplantation is carried out,and there are few systematic researches on its theoretical foundation and system framework.This shortcoming has caused our country’s current civil judicial order system to be in an embarrassing situation with a very low degree of systematization as a whole.The key elements are legislative effects,starting methods,generation process,remedy methods and legislative paradigm of many specific order forms in the legal system of our country,which have not been coordinated and systematized,and the phenomenon has led to a certain degree of "unacceptable" situation in our country’s judicial practice,and its system benefits are far from comparable to its original form in the United Kingdom and the United States.In this context,this article uses the new term "Civil Judicial Order" to collectively name the civil judicial activities in common law countries,which is different from the court and judge orders of civil judgments.In this article,the author has a comprehensive review of various civil judicial order forms and similar systems between the Chinese legal system and the common law system,and then explores the overall theoretical system and legislative framework of building a new type of civil judicial order system in our country,and puts forward specific suggestions on several issues in the construction of the system.The specific logic is as follows:In the "Introduction",this article first raises the issue of the low degree of systematization on our civil judicial order system,selected the research ideas and research methods of this article,and defined the research object and research scope.After fully combing the relevant research results at home and abroad,this article believes that our country’s civil judicial order system is still in the exploratory stage or the rudimentary stage,and its overall state is quite chaotic: First,there is a serious lack of coordination among various forms of specific civil judicial orders.The second is that the procedures and measures of applying for orders,issuing orders,and safeguarding orders are complicated.In the first chapter " The meaning of civil judicial order ",this article firstly explores the rhetoric and word formation of the three words "Civil","Judicial" and "Order" based on the perspective of semantics and legal history,and forms the " Civil Judicial Order System" is a brand-new term and an overarching concept.On this basis,this article attempts to analyze the many differences among civil judgments,civil rulings,civil decisions and civil judicial orders,and further explores the unique functions of civil judicial orders as a civil judicial system.In the second chapter " The function of civil judicial order ",this article fully combines the results of previous literature research,and summarizes the "temporary relief function","factual litigation status correction function" and "the function of source prevention and foregoing resolution of civil disputes" possessed by the civil judicial order system.In the third chapter "The Development Process and Enlightenment of China’s Civil Judicial Order",this article focuses on ancient China(846-1840 BC),modern China(1840-1949),and the period of new democracy and socialism(1939-1968).After detailed discussions on many specific civil judicial order system forms that have been active in China,this article believes,in the pre-Qin and feudal eras,that before the wave of "Western Learning" has not yet begun to impact China,Chinese legal persons are already in their own way which has gradually shifted from the rule of man to the rule of law,and the civil judicial order system has also gradually moved from being arbitrary to a certain degree of rule of law:Local judicial officials have begun to realize that the lack of judicial orders in court can easily lead to fierce resistance from the opposing parties.What’s more,local judicial officials have gradually reduced the use of orders to adjudicate substantive issues,and instead used such forms of adjudication more for mediation and optimization of litigation procedures.At the same time,this article also finds that the Shaanxi-Gansu-Ningxia Border Region under the leadership of the Communist Party of China has adapted measures to local conditions in the construction of the civil judicial order system.Not only is the legislative text and system structure concise and capable,its "lawsuit compensation order" system has pioneered modern my country.Since then,the system has been the first to combat malicious litigation.In the fourth chapter," The investigation and reference of civil judicial orders in Britain and America," this article conducts a systematic and comprehensive study of the relevant systems of the United Kingdom(the birthplace of the civil judicial order system)and the United States(the prosperous place).The legislative style of the judicial order system is discussed,and the similarities and differences of the current civil judicial order system between the United Kingdom and the United States at the legislative,judicial and theoretical levels are further analyzed.On this basis,this article tries to explore the origin and development trend of the British and American civil judicial order system,and provide reference materials for the determination of the overall thinking and the choice of legislative mode when our country builds a new type of civil judicial order system.In the fifth chapter," The systematic dilemma of China’s civil judicial order system ",this article analyzes the current legislative framework and practice status of our country’s current civil judicial order on the basis of the previous article,and believes that many of its existing detailed problems are to varying degrees,the three major problems at the overall institutional level must be attributed to them-namely,"vague legal nature","low degree of systemization of the system",and "lack of reasonable external institutional connection."In the sixth chapter,"Overall Ideas and Suggestions for Constructing Our Country’s New Type of Civil Judicial Order System",the first section of this chapter fully integrates the previous research results and clarifies the four basic principles of our country’s civil judicial order system,namely,the weak controversy of the cause and the judgment,the necessity of the order,the effectiveness of the order and the temporary nature of the specific measures.On this basis,the second section of this chapter classifies the forms of civil judicial orders scientifically according to three different criteria: the object of relief,the stage of production,and the legal effect;and then based on our country’s ancient and modern rule of law experience and current system reality,and this article fully integrates the rule of law outside the territory.In this context,this article believes that our country’s civil judicial order system should be divided into three basic order forms at the system level: injunction,protection order and procedural order(or procedural order).The third section of this chapter focuses on the key system elements such as the initiation,generation,relief and effectiveness of civil judicial orders as they should be in the legal environment of our country.The fourth section puts forward some specific legislative suggestions on the improvement of our country’s civil judicial order system,and believes that our country should choose something similar to the British "Civil Procedure Rules--Practical Guide to Civil Procedure Rules" when constructing a new type of civil judicial order system(the collaborative legislative model).In the second part of this subsection,this article discusses the connection between the civil judicial order system and the civil code and the criminal law.It is believes that the substantive civil law should select different specific forms of civil judicial order according to the specific circumstances,and believe that the “Civil Contempt of Court” and “Presupposition of the Right to Arrest in the Text of the Order” are not necessary and appropriate safeguard system choices for the civil judicial order system in our country.The optimal criminal system guarantee of the judicial order system.