Research On Institution Of Civil Trial By Default

With the impact of the development of economy, the aggravation of the people's flowing and other factors, it occurs frequently that one party defaults in the court. The institution of civil trial by default becomes an indispensable or necessary part and plays a more important role in the civil litigation procedure. However, the Civil Procedure Law in force roughly regulates civil trial by default just from the subject and circumstance, and exists some defects regarding to the subject and circumstance. The lagging of the legislation doesn't match the importance of civil trial by default in the judicial practice.This article reconstructs the institution of civil trial by default, starting from two models, learning from other countries and based on the functions of the institution, the balance of the civil litigation and jurisdiction and so on. Corresponding proposals are put forward according to the analyzing the types of defaults and objection institution shall be established in order to make up the intrinsic defects of civil trial by default and make sure that the civil procedure and the judgment can attain the basic requirement of justice.The article includes five parts, besides introduction and conclusion:Part one: Summarization of civil trial by default. This part states the meaning, features and two models of civil trial by default.Part two: Legislation investigation and analyses. Legislations of Germany, France, Japan, America and England are introduced and commented. It provides reference to the following reform of civil trial by default.Part three: The content and defects of our institution of civil trial by default. The regulation of the Civil Procedure Law in force regarding the civil trial by default, is neither the same as ex-prate debate judgment, nor the same as default judgment model. It has following defects in the procedural design: simple and crude processing to the plaintiff's default; starting the procedure by the judger positively; the simple and crude legislation and shortage of remedy.Part four: the theoretical preconditions of reforming the institution of the civil trial by default. According to the analyzing the nature of presenting in the court, the functions of the institution of the civil trial by default and the balance relationship of the civil litigation and jurisdiction, the theoretical preconditions of reforming the institution of the civil trial by default are clarified.Part five: The reform of the civil trial by default. In this part, Corresponding proposals are put forward according to the analyzing the types of defaults; objection institution shall be established in order to make sure the realization of procedural and substantive justice; the procedure of the civil trial by default shall not be started when neither parties present in the court; the the procedure of the civil trial by default shall start only when one party applies in order to guarantee the procedural subject position.