Study On The Interim Judgment System In The Civil Procedure

In the civil action process, we often encounter the following question: In the case of the trial, the parties of a certain right or legal relationship is established the validity of any disputes, and this dispute will be subject matter of litigation a major impact on the final decision, the right to dispute or legal relationship thus the cases of pre-judging the matter. To take appropriate way to deal with the pre-matter, subsequent proceedings will be simplified as the parties reached a legal settlement basis. In the civil action of the continental law system, the interim judgment which is founded on a pre-settlement of the matter is that the way a pre-determined, the matter on behalf of the judiciary. The interim judgment is an important litigation system for countries of the continental law system. It originated from Germany, Japan and Taiwan respectively made some adjustments according to their own national or regional situation, with the efficiency of the proceedings and promotes settlement of litigation, to strengthen public litigation functions. Generally speaking, the objects of the interim judgment are independent methods of attacks and defenses, the interim issue, and the reason for claim. The interim judgment is different from the final judgment, for the former has no fixed validity of judgment. If the litigation does not give in to the interim judgment, it can only make an appeal at the end of the trial, about the interim judgment together with appeal about the final judgment.Analyses of the interim judgment are made in this easy through the comparison of laws. The interim systems in the civil laws of Germany, Japan, and Taiwan are introduced, and the idea of constructing an interim system in our country is put forward.The total number of this article is more than 30000 words. Besides preface and conclusions, the article is divided into four chapters.Chapter I, the basic theory of interim judgment is analyzed. Firstly, this part of civil law countries and territories through combing civil scholars on the definition of the interim judgment and thus to define the concept of the interim judgment. The interim judgment is a special type of civil judgments by judges in preparation for a final decision, the case against the confirmation of pre-judgment matters. In the interim judgment based on the concept, we can reach the middle of sentence has the following features: preparatory, confirm and manageability. The interim judgment and confirmed the sentence on the middle of final judgments, as well as all belonging to different types of civil judgments, they are in the nature and effectiveness of other aspects, significant differences. Therefore, it is necessary to adopt the interim of discrimination judgments and related systems, to deepen the understanding of the system of interim judgment.ChapterПcompares the continental law countries and regions on the interim judgment of the legislative provisions. The interim judgment is an important litigation system for countries of the continental law system, which was founded in Germany, developed in Japan and China's Taiwan region. The common law countries and continental law countries there is clear legal traditions and institutional differences, there is no classic like the continental law system in the interim judgment. For its part, China's civil institutions and ideas closer to civil law, therefore, this section mainly continental law countries and regions in the interim of the Civil Procedure Law on the ruling regime to sort out the legislative provisions and comparative analysis, due to Germany, Japan and China's Taiwan region, the relationship between the middle of decision system has the same origin, the relevant legislation on the interim of the object and effect of judgments made detailed provisions, the author objects, and effectiveness in accordance with the order of the three to conduct a comparative analysis of the three judgments in the interim of the start-up and basically the same effect on the provisions, where applicable, there are some differences in the object. The French decision on the provisions of the interim judgment, there is a big difference with the previous three, so after the three separate analysis.ChapterШ, the civil center of China's ruling regime to build the basis is analyzed. The author in this part of the first system in the interim of judgments in civil actions in our history and current situation should be straightened out, and then for the value function of the system, as well as in our country to establish the necessity and feasibility analysis and argumentation. China's Qing Dynasty periods of the "Great Qing Civil Procedure Law (Draft)" for the first time the system provides for interlocutory decision. Later, the National Government civil legislation inherited the interim of the draft decision on the system requirements. After the founding of New China, China's mainland has been the civil legislation does not provide for interlocutory decision system. At present, China is now in an unprecedented period of transition, political, economic and social structure of the major changes in how to resolve the judicial resources and judicial capacity-limited nature of the dispute with the social contradictions between the complex and diverse, in order to achieve fairness and efficiency, the value of goal, which is a civil litigation theory and practice community is faced with common problems. Coupled with China's current system of civil jurisdiction there are many defects, such as unreasonable structure referee types, physical nature of a pre-determined way misconduct matters, etc., will undoubtedly increase the burden on the administration of justice. As an important content of the proceedings in the middle of command decision system, with the efficiency of the proceedings and promote settlement of litigation, to strengthen the public functions of the proceedings, may well be good policy to address these problems. Therefore, it is necessary to introduce the system of civil litigation in our country. In addition, China also has the feasibility of the introduction of the system is mainly reflected in: the interim of our civil system and the ruling system in the basic values and ideals on the division line, the two can be compatible; immediate fairness and efficiency of our litigation-oriented judicial Policy and intermediate ruling is aligned; present, China's overall quality of judges for the middle sentence to provide a corresponding application of the system of personnel security.Chapter IV presents the construction of China's civil litigation system in the interim judgments underlying assumptions. In the civil action of our country, interim judgment is only available to a separate attack defense method and the reasons for the request; the interim of the command areas of litigation judgments belong to the judge shall be ex officio a judge to start; interlocutory decision of the trial-level court for a binding, final decision is not the case with the interim of contradictory judgments; the middle of an appeal against a verdict in the trial level only after the end of the interim of judgments and final decisions will be filed with the appeal. In the revised Code of Civil Procedure, you can refer to this idea to make up for the system in the gaps in our legislation. It is worth noting that, in the specific construction scenario, for others not yet involved in a number of issues, such as the production of interim judgments, as well as through the restructuring of the trial to fight for points, finishing procedures for the establishment and improvement of the judges the right to release out to protect the interim of ruling system, the application of issue, the author conducted a preliminary exploration.