Research On Civil Procedural Option Right

As the proverb goes,the road has to be chosen before you go.Choice is to men what water is to fish,it is vital but likely to be neglected.Civil proceedings usually solve private disputes and balance the interests between the parties.Therefore,the parties have more freedom in civil proceedings.Under most circumstances,the parties often have the freedom to choose between civil proceedings and procedural matters.This freedom of choice is a right in litigation and is generally recognized as Civil Procedural Option Right by scholars.Our country has been adhering to the litigation concept of Emphasis on Entity,Light on Procedure for many years.This leads to many problems in judicial practice.The emergence and development of the civil procedural option right not only allows us to re-examine the significance of procedures,to place entities and procedures on the same position,but also allows us to understand how important it is for parties to have autonomous space in litigation.In the civil procedure,the opinion of the parties towards the proceedings and the procedural matters would eventually affect or even decide the final substantive result.Clarifying and guaranteeing the parties’ right to choose civil proceedings is the requirement of safeguarding the procedural subjective status and the of protecting human rights in the proceedings.At the same time,it is conducive to stimulate the parties’ participation in the operation of the procedure,increase the acceptance of the judgment results and ensure the prestige of the court.At present,the study towards right to choose civil proceedings of the parties is still in the initial stage.The theoretical problems in our country require further investigations,the system of rights needs to be constructed and improved and the issues in the institution demand continuously exploration.This dissertation is divided into six chapters:The first chapter is the introduction.Starting from the problems emerged in China’s judicial reform,it analyzes the historical and realistic backgrounds concerning the problems.Followed by the civil procedural option right,it represents an important way to promote the judicial reform process under the contradiction between the booming demand and slow development in judicial environment.In addition,this chapter also introduces the key points and deficiencies in the existing research,briefly presents the research ideas and methods of this dissertation and eventually explains the innovations and insufficiencies of this dissertation.The second chapter is the ontology of the civil procedural option right,that is,the analysis and discussion of the theoretical issues of the right itself.This part begins with the most basic conceptual research and clarifications of the specific meaning of the right.This dissertation believes that the connotation of this right is only the question of which one to choose and not the question of whether to choose.On this basis,this dissertation discusses further about the nature of the right,the elements of exercising the right and types of the right in detail,compares the right with the right to sue and sanction in order to determine the unique status of the right.The third chapter is the basic theory of the civil procedural option right,which can also be regarded as the external theory of the right.This part firstly discusses the legal basis,provides a more adequate theoretical environment for the right,analyzes the right from the perspective of necessity and importance and finally explains the necessary basis and method to restrict the right.The fourth chapter introduces the study concerning the relevant systems of extraterritorial countries or regions.This part firstly explores the origin of the right from Roman law,which fully proves that the right has a strong historical background and is not proposed by scholars on the whim.Subsequently,this dissertation separately discusses the characteristics of the relevant systems in the two major legal systems therefore connects to the current judicial status in China which would lead to the introspection of our system.Chapter five is the core chapter of this dissertation.In this chapter,from the perspective of the litigation stage,this dissertation organizes the civil procedural option right scattered in various legislation so that the civil procedural option right can be presented in a more systematic manner rather than the fragmented discussion of this right in previous studies.At the same time,this dissertation corrects the problems of appeals and retrial applications in previous studies and concludes with individual stance.To Re-examine the civil procedural option right under this the current system,the problems may be easier to be discovered.Therefore,this dissertation analyzes the problems existing in the legislation and judicature of the civil procedural option right in China.Chapter six contains the suggestions for the improvement of the system,mainly focusing on the existing problems mentioned in the previous section.This chapter discusses how to improve and protect the parties’ civil procedural option right from the perspective of ‘informed system’.