On The Civil Litigation Order

The conclusion that order is one of the essential values of law is challenged hardly by scholars in jurisprudence. Accordingly, the order of the civil action, as an extension of the order value, belongs to the essential value of the civil procedure law also. The theory of the order of the civil action, whose object is "the order of the civil action", belongs to the scope of the civil action value theory. According to the literature in existence, "the order of the civil action" wasn't emphasized by scholars, and relative discussions commonly focused on some concrete systems yet. When scholars were discussing the compulsion measures against the behaviors that obstacle the civil action, though they have regarded that protecting the order of the civil action is the basic purpose of these measures, they didn't consider the value tropism concealed in them and didn't detect the attribute that the order of the civil action is one of the basic values of the civil procedure law. At the standpoint of the civil action value theories and by adoption of these ways of the value analysis and demonstration analysis, the dissertation starts the study about the meaning of the order of the civil action, the realization of the order of the civil action and the perfection of the order of the civil action in China.The text of this dissertation, which has more words than 33000, comprises three parts except for the foreword.The first part is mainly about the discussion of the definition of the order of the civil action. Through scholars have quoted "the order of the civil action" this term broadly, its essential meaning has been not definitely explained now yet. Scholars used generally the term in the sense of the object of the behavior of disturbing the civil action, and not in the sense of the basic value of the civil procedure law. Firstly, by anatomizing the sense of "order" and "law order", the definition of the order of the civil action was lead out. According to the definition of the order of the civil action, its essential features were concluded too. Secondly, on the base of analyzing the value of the order of the civil action, this part examined its basic value station in the value system of the civil action. Finally, by discriminating the monism of "the private law order" and theviewpoint of "the procedure stability", this part distinguished "the order of the civil action" with the "order" value of the civil action law, "the private law order" value and "the procedure stability". According to these analyses, the conclusion is reasoned out: "The order of the civil action" indicates a orderly state in which the civil action conforms with the civil procedure rules under the collective effect of a lot of law factors and factors beyond law. Moreover, "the order of the civil action" belongs to a value object of the civil procedure law, and is held the basic status in the civil action value system.The second part is about the realization of the order of the civil action, which generalized the internal conditions of the realization of the order of the civil action from criterion and fact, analyzed its restraining factors, and examined its realization manner, from which these conclusions are reasoned: The two essential elements of the realization of the order of the civil action are that a civil procedure rules, which embodied the idea, namely the order of the civil action, will be established systematically, and that the rules will be abided by strictly. Besides, the realization of the order of the civil action will be restricted by a good many exterior factors, in which there are not only law factors such as law concept, law system and law establishment etc, there are but also factors beyond the law such as polity, economy, moral, religion and habitude etc. Finally, realizing the order of the civil action must insist on "the duality order idea" in which constructivism and evolutionism combine together. On the one hand, we must exercise the power of rational to construct the civil procedure rules, which embodied the idea, namely the order of the civil action, and ensure the rules comprehensively brought into effect in the judicature as soon as possible. On the other hand, we must pay attention to the limitation of logos enough, and emphasize the harmonious and synchronous development of the realization of the order of the civil action and its restricting factors.The third part, which is about the perfection of the order of the civil action in China, which reviewed briefly the evolvement of the order of the civil action in China, anatomized the actuality and causes of lack of the order of the civil action in China, and provided some primary tactics for the perfection of the order of the civil action in China. The civil procedure system in China is on the time ofmodel changing. The lacks of the order of the civil action in China embody concretely three aspects such as designing disorderly the dvil procedure, stipulating the dvil procedure not by the law, and exercising the procedural behaviors not under the civil procedure law. These lacks of the order of the dvil action in China were mainly attributed to three factors such as the concepts about the civil action, the law systems about the dvil action, and the establishment about the dvil action. Currently, the most pressing steps of perfecting the order of the dvil action are to cultivate the concept of the order of the civil action, to emend the civil procedure law and the laws related to the civil action. Besides, strengthening the construction of the law institution and law establishment, advancing the ability of lawmen are too the important contents of perfecting the order of the civil action in China.