Research On Defense In Civil Litigation

As a way against the attacks of the other side,defense is an important form for the party in implementing litigation actions in the proceedings,and also a significant way to exercise the litigation rights.This article aims at a systematic combing of the civil procedural defense to reveal the true meaning of the defense to the technical structure of Civil Procedure.This article begins with the history of the defense.First,it clarifies the relationships and distinctions between defense and the right of defense.Defense is derived from the Roman law,but the right of defense is the product of the Concept of law in the 19th century.According to the procedural defense in the Rome Law,the countries of modern Anglo-American Law and Continental Law,defense is more clearly defined in the procedural law than in the substantive law.The second part mainly discuses the framework of procedural defense under the Continental Law.The Norm theory on the substantive aspect,the court structure and the parties’ offensive and defensive systems on the procedural aspect together form the entire framework of the procedural defense.On the base of integrating the substantive and procedural connotation,this article defines the connotation of defense as the ultimate facts raises by the parties which can establish the interrelated facial claims of the other side,and can not establish the calms simultaneously.Therefore,today the procedural defense possesses both substantive and procedural properties.The third part focuses on elaborating the function of defense from the macro-,meso-and micro-level.The function includes protecting rights,procedural justice,improving system of concentrated trail,deepening the adversary doctrine to affecting the defense invalidity,the writing ways of verdict and the lawyers’ professionalization.We can further excavate the elements of nature and antagonism that defense possesses by revealing its functions,which must be consummated to promote a better play of the functions.Part four designs the implementation mechanism and running logic of defense.The carrier that defense based on and the specific ways that defense implements are exactly embodied in the implementation mechanism.And the running logic includes the selection of defense as well as the hearing and effectiveness of defense.We can see from the design that defense has its own specific implementation mechanism and unambiguous running logic,so that the framework structured in this part makes defense a strong operability in specific litigation field.The fifth part principally points out the existing substantive and procedural defense system,then analyses the actual operation situation and problems of defense system in the case through the introduction of a specific case which emphasizes the procedural defense.On one hand,it confirms the practice,which is in accordance with the operation of the defense system;and on the other hand leads to the related theory of the arbitration contract which can prevent the litigation,the distinction between denial and defense.In the last of this part,by reviewing the case we can analyze the horizontal and vertical system of defense,the focus points of debate and the concrete manifestation of the theory discussed before in the case.As a summary of the article,the last part proposes that civil litigation should return to the technicality of the judicial proceeding.The litigation involving humans’ designing and the proceeding posing regularity indicates that the proceeding itself must have a strong technicality.It refers that litigation should be embodied in certain technical program and provided with a basic framework of offense and defense.The substantive and procedural attributes and the functions of both horizontal and vertical aspects of defense in civil litigation indeed highlight this point.It not only makes good to the efficient running of the proceeding,helps safeguarding rights,helps the judge grasp the litigation judgment writing clue and reform the writing ways of verdict,but also promotes the specialization of legal professions which is of more importance.It can make a truly technical regression of litigation proceeding in the process of the formulation and implementation of civil procedural law through the benign interaction between practice and theory.