Research On Institution Of Civil Trial By Default

In countries of civil lawsuits, there are quite a number of cases ending up withtrial by default by the court.Therefore, two main legal systems of some countrieshave made detailed provisions about the applicable conditions, applicable procedureand relief ways of trial by default system.With the constant improvement of the civilprocedure law in our country, absentia system has become necessary setup procedureof our country civil action.However, the deficient legislation and lack ofmaneuverability bring many disunity to the judicial practice, which leads trial bydefault system cannot achieve proper function in China. In the condition of absence,confrontation lawsuit structure is out of balance. What is known as” Listen to bothsides and you will be enlightened; heed only one side and you will be benighted”, inthe imbalanced process of the proceedings, we have to think about how to guaranteethe judge apply trial by default from the legislation correctly, and maximize awin-win situation between justice and efficiency. Therefore, this article combinedwith the reality of our country, summarize excellent experience from other lawsystem countries about trial by default, and reshape guidance idea and system designof trial by default, in order to help to consummate our civil absentia system.This paper content is divided into five parts:1. Overview on civil trial by default system. This part starts with the concept oftrial by default system, introducing some provisions about the definition rules whichtwo main legal systems of some countries make about trial by default on thelegislation.Meanwhile, finding out some divergences on the specific definition of thisconcept, and on this basis, summarizes the characteristics of trial by default. Inaddition, it also introduces two main legislative model of trial by default, namely thedefault judgment doctrine and the one-party adversary system2Civil absentia system evolution. This section is in perspective of the historicaldevelopment of trial by default. Ancient Rome trial system can be regarded as infancy.During this period, the development process of the trial by default system can begenerally divided into three stages: namely the legal litigation, procedure litigation and extraordinary litigation period, because the trial by default system make impartialjudgment against the judge, in some modern countries’ legislation, made a strictlimits of trial by default. In ancient China, however, there is tradition of focusing onphysical despising on procedure and focusing on criminal penalty despising on people,which makes the country force parties concerned to appear in court to litigate throughall possible means. Until the early20th century, large-scale western civil procedurelaw has been input to China, our country has the trail by default provisions.3. The components of the trial by default system. This part through thecomparison research method, introduces the Anglo-American law system andcontinental law system main countries about procedures requirements, physicalrequirements, the provisions of the relief way of trial by default. According to theconstitutive requirements, respectively, compare with the evaluation, in order to laythe foundation of improving our country’s trial by default system.4. Status analysis of our country civil procedure law. This part first elaboratedour country civil procedure law and relevant judicial explanation about absence in theprovisions of the judicial system. Then from the Angle of legislation and judicialoperation, analysis and summarizes obvious flaws of trial by default.5. The consummation of the civil trial by default system in China. This sectionfirst analyzes the principle that the trial by default system should follow. Redefinetrial by default system in our country should choose the legislation mode. On thebasis of above analysis, aiming at the problems in trial by default system, putsforward with some perfecting Suggestions. For example, specify the reasonable scopeof the "absence". The judge should have evidence of substantial examination. It isnecessary to set up a compulsory defense system and the absence of objection to trialsystem of relief, etc. Strive to comprehensive and meticulous, make it better to adaptto serving our country’s practice of trial by default of civil action.