Research On The Intermediate Judgment System In Civil Litigation

The interim judgment in civil litigation is a confirmatory judgment made by the judge in the process of the litigation.It is the institutional tool for the judge to conduct litigants to submit the litigation information timely,effectively and comprehensively.It is conducive for judges to clarify cases,fix disputes,speed up trials,and pin down facts,which is beneficial to parties to obtain moral convictions,focus on debates,participate in procedures so as to safeguard their rights.China’s legislation of current civil litigation does not adopt the interim judgment system,making it difficult for substantive interim disputes to be judged properly.As a result,the parties are entangled around the disputes,spending too much time,money on litigation,resulting in low efficiency,high cost,and indirect proportion of judicial resources input to output.In order to solve the problems mentioned above,it is necessary to introduce interlocutory judgment system which has been clearly defined and widely applied to judicial practice in civil law countries(regions)to China.The first chapter of this article is an introduction.It focuses on research background,research significance,the research status at home and abroad,research ideas,research methods,and deficiencies and innovations to have a introduction of the interim judgment system.The second chapter examines the basic theory of interim judgment system with three sections.The first section is an introduction to the system,and discusses its concept and characteristics.The second section talks about the distinction between interim judgment and the final judgment of civil litigation,partial judgment and interim confirmation judgment.The third section is about the extraterritorial legislation of interim judgment system,including the provisions of the civil procedure law in Germany,Japan and Taiwan.The third chapter of this paper investigates and analyzes the legitimate basis on establishment of the interim judgment system of civil litigation in China with four sections.The first section touches upon the legal basis of interim judgment system in civil litigation in China.It is believed that the principle of procedural interests protection and the principle of centralized trial can provide legal support for the interim judgment system.The second section analyzes interim judgment system in functional perspective,and believes that the interim judgment system is able toconduct and promote litigation,publicize evidence,facilitate reconciliation and inherit judgment.The third section focuses on the necessity of establishing the interim judgment system of civil litigation in China.It is considered that the current system of judgment in China is insufficient,and the judicial judgment of substantive prerequisites is unreasonable.Therefore,it is necessary to establish an intermediate judgment system.The fourth section is about the feasibility of setting up the intermediate judgment system of civil litigation in China.It elaborates that the interim judgment system has no conflict with the theory of litigation subject and the principle of disciplinary action,and is compatible with the existing litigation system in China,such as the first enforcement system and civil litigation,legislative provisions,referee systems,etc.The fourth chapter investigates and analyzes the program design of constructing civil litigation interim judgment system in China with seven sections.The first section discusses the applicable object of interim judgment system in civil litigation.The applicable object of the intermediate judgment should be the independent attack or defense method and the reason for the request in the payment,while the procedural interim disputes are unnessisarily judged by the interim judgment.The second section is about the starting procedure for the interim judgment.It proposes to initiate the procedure according to different types of intermediate judgments.The statutory intermediate judgment and any intermediate judgment are made by the judge ex officio.The difference is that the statutory interim judgment is that the judge must be ex officio while arbitrary interim judgment is that the judge may apply ex officio.The third section is on the application time of the interim judgment in civil litigation.The initial time for the judge to apply the interim judgment is the first time of organizational evidence exchange(after the first verbal debate),the deadline for applying the interim judgment should be ahead of the last verbal debate.The fourth section touches upon the four applicable conditions for the interim judgment in civil litigation.The first is the importance of the prerequisites,the second is the controversy of the prerequisites,the third is the prerequisite for the debate,and the fourth is the prerequisite of the formation of free evaluation of the evidence.The fifth section is the legal effect of the intermediate judgment in civil litigation discussed in two parts,the first is to determine the validity of the previous interim judgment for the final judgment with the fact that the interim judgment has the "temporary" form determination power.The second includes the effectiveness of the interim judgmentafter the final judgment is determined.In general,the interim judgment does not have the same judgment,and only has the argument,but the judgment of the offset defense is a special case and has the res judicata.At the same time,combined with China’s legislative provisions and judicial practice,the introduction of an interim judgment system,such as the introduction of China,should have the effect of proof.The sixth section is the remedy for the intermediate judgment of civil litigation.It is not possible to appeal the intermediate judgment immediately,and it is subject to appeal after the final judgment is made.Section seven focues on the production of the interim judgment.The interim judgment does not necessarily include the judgment of the court of appeal and the time limit for appeal and the cost of litigation.The content of the judgment should include the date of the end of the verbal debate,the basis of the interim judgment and the legal consequences after the decision.The fifth chapter of this paper examines and analyzes the supporting measures for the interim judgment system of civil litigation with four sections.The first section is about how to improve the dispute sorting procedures.It is suggested that China’s civil litigation should establish a perfect pre-trial dispute sorting procedure.Only the disputes will be sorted out during the trial,which will make the parties passive.The second section is to establish the principle of restrictive debate.It is advised that China’s civil litigation should establish the principle of restrictive debate,and order the parties to conduct a centralized debate on the matters that the judge will determine in the interim judgment,and must not decentralize the debate.The third section is to reform the trial structure.It is proposed that the civil litigation in our country should be combined with court investigation and court debate.The court should conduct court investigation and court debate in order according to the logical relationship between the disputes.The fourth section is to clearly clarify the matters.The matters that the judge should clarify include: 1.The reasons for the judge to or not to make an interim judgment;2.The matters for supplementing the litigation materials;3.The legal effect after the interim judgment is made.