A Study On Civil Prosecutorial Hearing

Referring to the institutions in modern hearing procedure, founded on elementary principals in civil procedural law and an in-depth probe into the basic principals and specific institutions in civil prosecutorial hearing (CPH), this dissertation analyzes problems and their causes in China's current system of CPH, sets forth some essential ways to promote Chinese CPH and submits a drafting rule of Chinese CPH. Except the introduction, it consists of four chapters. Introduction By appraising the theory of weakening the civil prosecutorial-protest system, the author emphasizes that, to insist on civil prosecutorial-protest system, it is the most critical to promote the initiating procedure of civil prosecutorial-protest to accord with the basic requirement of due process. Since most civil prosecutorial-protest are originated by the appeal of the relevant party, it is of significant meaning to establish and perfect CPH system in the examining procedure of civil appeal, which is the purpose of this dissertation.Chapter One: Overall Discussion of CPH.By making a brief introduction to the development of hearing in China and other countries, the author suggests the concept of CPH and analyzes its meaning from the institutional and behavioral aspects. By contrasting with other forms of hearing, the characteristics of CPH are discussed, and values of CPH are set forth from the standpoints of the parties, People's Procuratorate and People's Court.Chapter Two: Principals of CPH. By analyzing simply the legal meaning of principal, the author suggests that the principals of openness, fairness and disposal should be the principals of CPH according to the core principal of due process and civil characteristics of CPH. It is detailed then about the concepts, significances of these three principals and their specific requirements in CPH.Chapter Three: Specific Institutions of CPH Referring to basic institutions in modern hearing, the author holds that CPH should include institutions such as the scope, method, participants, procedure of hearing and the conclusion. About the scope of hearing, by analyzing the effect of different examining results by the People's Procuratorate, it suggests that all civil appeal cases should be heard if they are applied. As to the method, by analyzing the effect of different examining results to the interest of relating parties, researching the "grave" legal sequence brought about by protest, studying the facts in civil appeal cases, the author insists that the CPH should be divided into formal and summary procedures. Concerning the participants, the author mainly deals with the organizer, presider as well as rights and obligations of each participant in hearing. On hearing procedure, the author stresses the procedure of formal hearing, which should include stages of arrangement, initiation, prosecution and close of hearing. About the conclusion of hearing, the author analyzes respectively the procedure and deadline of conclusion in formal and summary hearing. Chapter Four: Perfecting Chinese CPH. Beginning with anatomizing the problems existing in the hearing principals and specific institutions in current Chinese CPH, the author analyzes ideological, legislative and quality factors causing those problems, sets forth basic ways to further promote Chinese CPH system. Finally, based on summarizing the experience of Chinese CPH, a drafting rule of CPH of the People's Procuratorate is put forward according to the basic principals of procedural law.