Civil Procedure Law Principles

Author: Tian Ping'an
Publisher:
Publishing Date: 2004-09-01
Features: This book systematically elaborates on the basic concepts, theories, historical development, and fundamental systems of civil procedure law. Based on China's Civil Procedure Law and referencing the relevant principles and systems of civil procedure laws from other countries, it comprehensively explains the content of procedural subjects, procedural structure, principles and systems, procedural evidence, procedural process, non-litigious procedures, execution procedures, and civil, Hong Kong, Macao, and Taiwan-related as well as foreign civil procedure laws. It also proposes legislative recommendations for China's Civil Procedure Law.
With the passage of time, the civil procedure law discipline in New China has stumbled through a 55-year journey. Reflecting on the past, the footprints of civil procedure law studies evoke a sense of excitement and contemplation. In a society that prioritizes rule by man over rule of law, where criminal law is valued over civil law and substantive law over procedural law, the germination, growth, and flourishing of civil procedure law as a (budding flower) in the garden of legal studies have been incredibly arduous.
As is well-known, since the founding of the People's Republic of China, China has promulgated two civil procedure law codes: the 1982 trial draft and the 1991 Civil Procedure Law. The publication of the trial draft marked the birth of civil procedure law studies, which were heavily annotated, and the implementation of the Civil Procedure Law ushered in reforms in civil trial methods and the general framework of civil procedure law theory. With the arrival of the new century, against the backdrop of significant changes in the country's political, economic, cultural, military, and diplomatic situations, civil procedure law studies face new challenges.
Seriously summarizing the past, meticulously reviewing historical lessons; calmly facing the present, comprehensively summarizing judicial experience; accurately introducing advanced concepts and systems from abroad, coupled with scholars' innovative thinking rooted in the local context, civil procedure law studies will undoubtedly usher in a new stage of development. In this special historical period, driven by numerous colleagues dedicated to fulfilling historical missions, this series titled "Frontiers of Civil Procedure Law in the 21st Century" (hereinafter referred to as "Frontiers") has finally been published.
Over time, certain provisions of the 1991 Civil Procedure Law have increasingly shown shortcomings in keeping pace with judicial practice. The task of thoroughly reforming the current civil procedure system and revising a Civil Procedure Law code that is guided by advanced concepts, well-rounded in content, more operational and targeted, with a reasonable structure, and composed of (perfect procedures and systems) has been placed on the agenda of the legislative body. The new Civil Procedure Law code should be forward-looking, capable of meeting the expectations of the civil procedure mechanism and function in the coming years' economic and social development. To achieve this, it must be grounded in the national context and judicial practice while also elevating or surpassing it. To accomplish this arduous task, strong theoretical support from the civil procedure law discipline is essential, which requires civil procedure law studies to break free from the confines of annotated law and grow into a true theoretical legal system. It must fully utilize research methods from legal philosophy, legal sociology, and related fields such as history and economics to form a mature and systematic methodology, thereby perfecting the theoretical system of civil procedure law and ultimately providing comprehensive theoretical support for the revision of the Civil Procedure Law with a forward-looking stance.
First, achieving a shift in the focus of civil procedure law studies from the establishment of value concepts to the construction of systems is the primary task we face in the new century. In the past, the focus of theoretical research was largely on establishing value concepts rather than constructing specific systems. At the end of the last century, theoretical discussions surrounding the reform of civil trial methods were more about critical analysis of systems than actual construction. Discussions on procedural value, procedural guarantees, the relationship between procedural and substantive justice, and the autonomy of parties in procedural matters established the value concepts of civil procedure law at the philosophical level. However, the most powerful way for legal scholars to advance social development is to combine value concerns with system construction. Within the framework of theoretical research, not shying away from micro-level specific system design and construction will be an even more urgent topic for civil procedure law studies in the 21st century.
Second, civil procedure law studies must provide theoretical support with inherent unity, coordination, and comprehensiveness for the construction of civil procedure legal systems and ultimately achieve a dynamic connection between theoretical research and judicial practice. Currently, the basic theory research of civil procedure law in China remains at the level of pure theoretical exploration, failing to permeate the design of specific procedural systems. Research on the major basic theories has not yet been integrated with a common legal rationale of inherent logical consistency. For example, the theory of procedural subject and the theory of res judicata are both decisive in determining the commencement of a claim, the merging and separation of claims, the termination of claims, and the statutory conditions for retrial. However, research on these two major theories is neither integrated nor deeply analyzed in relation to the current legislation or judicial practice. The theories of procedural right, procedural purpose, and civil procedure legal relations are also largely in the same situation. The lack of rigorous logical coherence in theory is a major reason for the rough design of systems in legislation, gaps and conflicts between norms, and the need for theoretical updates and system reforms. During the era of theoretical renewal and system reform, theoretical construction must pay special attention to coordinating a series of relationships: the consistency of legal concepts and basic principles across basic theories, the internal logical consistency of the doctrines adopted by each theory, the compatibility between basic theories and the legal system design that depends on them, and the interconnection between new and old theories in system design. Only in this way can a common legal rationale with inherent logical consistency guide the research of each basic theory, achieve the internal integration of the entire civil procedure law theoretical system, and form a basic theory system of civil procedure law with inherent unity. This is another major task facing civil procedure law studies in the new century.
Third, strengthening the study of comparative civil procedure law. The historical discontinuity of China's legal system and legal research has led to gaps in the development of civil procedure systems and the study of civil procedure law, lacking material support from historical traditions at both the institutional and legal theory levels. Through the application of comparative civil procedure law research methods and the borrowing of civil procedure systems and theories from the legal systems of developed countries in the world, these resource deficiencies can be (compensated). Based on this, there has been a significant increase in the introduction of modern civil procedure systems from Western developed countries in recent years. However, the lack of a complete and systematic introduction of foreign legislation inevitably leads to the suspicion of superficial and fragmented understanding. Moreover, the introduction of foreign systems often lacks effective comparison with the domestic environment, and the attitude is also biased: emphasizing the advantages of foreign systems without rationally acknowledging the uncertainties faced in the practice of system transplantation. At the theoretical level, the translation of original works is severely insufficient, the introduction of the theories of Western scholars of procedural law is inadequate, and there is a lack of systematicity. This cuts off the necessary reference and support between institutional practice and theoretical research, making the introduction and borrowing of foreign civil procedure systems and theories lose the theoretical support from the theoretical level.
Fourth, strengthening empirical research. The excessive focus on pure theoretical exploration and the lack of rigorous quantitative data support have been shortcomings in past research. Whether focusing on the establishment of value concepts or the construction of specific civil procedure systems, to have a practical impact on social development, civil procedure law studies must achieve a healthy communication between theoretical research and social practice through an empirical sociological research approach, which is currently lacking in civil procedure law studies. Overall, there has been excessive focus on pure theoretical exploration in research, while empirical research has been insufficient. The proposal of certain value concepts is often based on pure logical deduction, lacking strong support from empirical research. The proposal of certain system designs is also often based on a biased borrowing of foreign systems, with insufficient attention to the empirical social environment support required for them. Based on this, we must strengthen empirical civil procedure law studies, use rigorous quantitative data from judicial practice to prove the value of the theoretical claims proposed, and predict the possibility of implementing certain civil procedure system designs at the outset.
Fifth, paying attention to and strengthening the study of the relationship between the Civil Procedure Law and the Constitution. The Civil Procedure Law is an important "member" of the national legal system. The civil trial system is an integral part of the national judicial system. As the fundamental law of the state, the Constitution determines the composition and structure of state power, leading the entire legal system and judicial system. The direction of civil trial power depends on the constitutional positioning of judicial power and the judicial department within the entire state power system and state organ system. The purpose of civil procedure and the functional allocation of the roles of parties and judges in litigation depend on the functional positioning of trial power by the Constitution. The constitutional confirmation of procedural right as a basic component of human rights is a "primary" basic requirement for the procedural legitimacy of civil procedure. The judicial philosophy determined by the constitutional system permeates every cell of civil procedure law theory and specific systems. The judicial system restricts the institutional framework and operational environment of the entire Civil Procedure Law. Therefore, civil procedure law studies can only find a constitutional basis for the theoretical support provided to specific system construction by giving sufficient attention to the relationship between the Civil Procedure Law and the Constitution and maintaining the internal unity between the construction of specific civil procedure systems and the construction of the entire social legal system.
Sixth, strengthening the communication between civil procedure law studies and related substantive law research. Emphasizing the independent value of procedure does not mean severing the natural close connection between procedural law and substantive law. The civil procedure law theoretical community in China has already reached a consensus: civil procedure is a "field" where civil substantive law and civil procedural law jointly act. Civil procedure law studies cannot be an isolated system with no connection to civil substantive law studies. Combining the research of civil substantive law with civil procedure law studies is crucial for the further development of the latter. Only by achieving healthy communication can we maintain consistency between the construction of civil procedure legal systems supported by civil procedure law studies and the construction of civil substantive legal systems supported by civil substantive law studies, and ultimately achieve a dynamic balance at the level of system practice. However, due to the lack of coordination from the civil substantive law community, and the difficulty of research subjects in both fields covering both areas simultaneously, as two disciplines, their research remains in a state of mutual isolation and independent operation, making communication difficult. For example, in the major topic of burden of proof, which both disciplines face, there seems to be no common language. Civil substantive law studies pay little attention to the research efforts of civil procedure law studies in this area, and there is still no regular communication channel for observation perspectives or related academic activities.
Seventh, gradually forming a diversified and three-dimensional methodology system for civil procedure law studies. In recent years, with the rejuvenation of the research community in civil procedure law studies, its subject consciousness has increasingly broken free from the constraints of traditional ideological concepts, promoting the diversification and three-dimensionality of research methods in civil procedure law studies. The "autocratic" status of annotated law has been broken, and civil procedure law studies have gradually broken through these limitations to enter a new era of flourishing and competing research methods. The rift between legal philosophy and civil procedure law as a departmental law is gradually being mended, with the latest achievements of legal philosophy research providing strong support for the further development of civil procedure law. Methodologically, legal philosophy should play a leading role in departmental laws, providing methodological support for the development of each departmental law, and civil procedure law should also be subject to this leadership. With the methodology system of legal philosophy entering civil procedure law, historical and comparative methods are being re-emphasized, while economic analysis and sociological methods are increasingly becoming new favorites in the civil procedure law research community. However, this diversified and three-dimensional methodology system is still in a relatively weak formative stage. To enable civil procedure law studies to truly shoulder the responsibility of providing comprehensive and systematic theoretical support for system construction, a sound, diversified, and three-dimensional methodology system is essential. This requires 21st-century civil procedure law studies to seize the opportunity to promote the formation of this system and carry out mature civil procedure law theoretical research within a mature methodology system, thereby providing mature theoretical support for system construction. For this purpose, the "Frontiers" series will continue to uphold the advantages of traditional annotated law methods while maintaining an open attitude in methodological choice, incorporating legal philosophy, legal sociology, historical jurisprudence, economic analysis jurisprudence, and other legal methods. Ultimately, it will form and apply a systematic and balanced methodology system. Thus, it will comprehensively, systematically, and accurately elaborate on the past, present, and future of the Civil Procedure Law; it will be rooted in China while looking to the world; it will summarize experience while studying problems; it will focus on theoretical exploration while emphasizing empirical research; it will pursue the internal unity of the civil procedure law theoretical system while striving for coordination with related substantive law research.
In line with the openness of this methodology system, the "Frontiers" series will not structure its content by chapters and sections but by thematic explanations. Thus, it aims to replace the formal systematicity represented by chaptered writing and the connotation of annotated law with the substantive systematicity implied by the theoretical system. All of these arrangements are an important part of the goal of building a systematic methodology system as the foundation to construct a systematic civil procedure law theoretical system and ultimately provide a systematic and comprehensive theoretical support for the revision of the Civil Procedure Law.
The prosperity and development of civil procedure law theory depend on the continuous emergence of civil procedure law talents. The predecessor of Southwest University of Political Science and Law, Southwest Institute of Political Science and Law, pioneered the training of master's degree candidates in civil procedure law studies in China in 1979. Over the past 25 years, the training of master's degree candidates in civil procedure law across the country has made significant progress in both quality and quantity. However, to this day, civil procedure law graduate teaching still lacks a systematic, authoritative, and comprehensive teaching manual, which is indeed a regrettable situation. According to the author's knowledge, most universities' master's degree candidates in civil procedure law refer to undergraduate law textbooks. It should be noted that since the publication of the trial draft of the Civil Procedure Law and the formal implementation of the 1991 Civil Procedure Law, the teaching of civil procedure law in law majors across universities has gradually flourished, with a large number of textbooks written by official, private, and individual authors. These textbooks have provided strong support for the prosperity of civil procedure law teaching and are commendable. However, many textbooks are still limited by the framework of annotated law in terms of methodology, strictly follow the current legislative system in terms of structure, and stop at interpreting legislation in terms of content. Although they are beneficial to undergraduate teaching, it can be asserted that it is not a long-term solution for master's degree candidates in civil procedure law to rely on or borrow undergraduate law textbooks for an extended period. Graduate students, by name, are students who both study and conduct research. The task of graduate teaching should no longer be limited to mass-producing junior, applied legal talents for judicial practice but should instead cultivate undergraduate students with research potential into high-level, specialized legal theory research talents, enabling them to undertake the task of providing theoretical research support for judicial practice, thereby forming knowledge complementarity with junior, applied legal talents, and providing a virtuous cycle from practice to theory and back to practice for the entire rule-of-law construction.
In such a historical period, the historical rationality of the original annotated civil procedure law textbooks has become less sufficient. Whether in terms of theoretical depth or comprehensive content, they are unable to meet the needs of cultivating high-level, specialized legal theory research talents in the new historical era. This requires a systematic and adaptable civil procedure law teaching manual for civil procedure law teaching to share the new historical mission (assigned) to civil procedure law teaching in this era.
Of course, graduate education is designed to cultivate high-level, specialized legal theory research talents and must maintain appropriate openness and cannot be bound by a certain fixed educational model or system. However, as determined by the nature of education, even graduate-level legal education is collective, and therefore, it is necessary for an external, systematic element to provide leadership rather than allowing it to be uncontrolled and uncoordinated. With the experience and advantages of cultivating graduate students at Southwest University of Political Science and Law, a special set of learning materials for graduate students has been specifically organized, which is not only necessary but also entirely possible. The "Frontiers" series deeply understands the differences between undergraduate and graduate legal education, fully absorbs the positive and negative experiences of 25 years of cultivating graduate students, and fully recognizes that the systematicity of teaching cannot obscure the openness of graduate teaching. On the contrary, as long as it is properly guided, it can better leverage the ideological vitality of graduate students in civil procedure law studies within a systematic framework and enable them to focus on theoretical research and practical operations. The "Frontiers" series strives to maintain strict unity in content and structure. Whether it aims to provide systematic and comprehensive theoretical support for the revision of the Civil Procedure Law or to provide a systematic teaching manual for graduate students in civil procedure law studies, the "Frontiers" must have both inherent logical unity and external formal systematicity, making content and structure crucial for the achievement of the series' goals.
For this purpose, the "Frontiers" series will consist of nine works. "Principles of Civil Procedure Law" is the leading work in the series, serving as the "general theory" of the 21st-century civil procedure law "Frontiers" series. It looks both backward and forward, taking into account the current state of undergraduate law teaching while also providing for deeper content. Under its leadership, the entire theoretical system of civil procedure law studies will be divided into eight parts based on the position of each field within the theoretical system and its coordinates in the civil procedure system construction project, and will be named "Fundamental Theory Part," "Procedural Subject Part," "Principle and System Part," "Procedural Evidence Part," "Procedural Process Part," "Execution Procedure Part," "Foreign-related and Arbitration Part," and "Maritime Special Procedure Part." These eight works will serve as the "special theory" parts of the "21st-century civil procedure law Frontiers" series. The general theory and special theories are mutually complementary and echo each other, shaping the external formal systematicity of the "Frontiers" series in terms of structure. At the same time, the "Frontiers" strives to break away from the traditional practice of writing textbooks by chapters and sections, using "themes" as the basic unit of theoretical explanation. In the writing process, we pay equal attention to the coordination between thematic theoretical explanations within each work and the unity of the description and argumentation of each work in its research field, striving to make the series possess inherent logical unity in content.
Additionally, the "Frontiers" includes "Maritime Special Procedure" in its scope and gives it high importance, addressing a major deficiency in traditional civil procedure law research and traditional textbooks in terms of research field settings.
To achieve the above goals, the "Frontiers" series has invested considerable effort in forming its writing team and determining its strategy. The discipline of procedural law at Southwest University of Political Science and Law is the first law doctoral program in Southwest University of Political Science and Law and even in Southwest China. The Civil Procedure Law course is a fine course in Chongqing. The "Frontiers" series is a key research project of the law school's civil procedure law discipline. The strategy of "dividing forces to mobilize the masses and concentrating forces to deal with the enemy" is adopted by the series. That is, collective wisdom is gathered, and responsibility is assigned using a target responsibility system. The editorial work is personally responsible by the author, with the chief editor responsible and the deputy chief editor assisting the chief editor. The participating members are primarily from the discipline, but a wide range of doctoral and master's degree holders in civil procedure law studies from the discipline who have entered society are also recruited. Therefore, the writing team of the "Frontiers" series first achieves a three-dimensional combination of old, middle-aged, and young, and second, exhibits a strong "Southwest" characteristic.
To break through the limitations caused by regional division in theoretical research, and to strengthen communication with adjacent disciplines and achieve rational dialogue between researchers from different disciplines, we have specially invited scholars from adjacent disciplines to participate in the writing of the manuscripts, thereby providing a platform for such communication and dialogue.
Furthermore, the "Frontiers" series strives to promote the diversification and three-dimensionality of the methodology system for civil procedure law studies. Whether in the selection of writing members or in the arrangement of content, the series maintains openness in methodological choice, striving to promote the diversification and three-dimensionality of the methodology system for civil procedure law studies. It continues to leverage the advantages of traditional annotated law methods while incorporating legal philosophy, legal sociology, historical jurisprudence, economic analysis jurisprudence, and other legal methods, selecting and applying appropriate research methods for different research fields. To address the defect of traditional civil procedure law studies that overly focus on pure theoretical exploration, the "Frontiers" series will strengthen empirical analysis and make it mutually supportive and complementary to pure theoretical exploration. To address the defect of traditional civil procedure law studies lacking necessary communication with related substantive law studies, the "Frontiers" series will strive to reasonably borrow the research methods and achievements of related substantive law studies, achieving a comparison and resonance between procedural law and substantive law in civil procedure law studies and practice, shaping a systematic and balanced state between civil procedural law and civil substantive law, and inspiring the application of the "system theory" of legal methods in civil procedure law studies.
Of course, creating a teaching manual for graduate students is an innovative work. Without precedent, there is no successful experience to draw on, nor lessons from failures to learn from. The only reference available is the 25 years of graduate teaching practice, which drives us forward with a dedicated pursuit of legal education. As mentioned earlier, the series consists of nine works, and the content is undoubtedly rich, and the system is undoubtedly large. It is obviously impossible to teach all the content within limited academic hours. Therefore, it is suggested that colleagues using the series carefully select and flexibly manage, while most of the content should be left for graduate students to study and think about.
Finally, following tradition, we sincerely express our deep gratitude to the colleagues at Xiamen University Press, the publisher of the "Frontiers" series, for their support and hard work, without which the series would not have been possible.