Civil Procedure Law. Part on Litigation Procedure

Author: Liao Zhonghong, Editor-in-Chief
Publisher:
Publishing Date: 2005-03-01
Features: With the passage of time, the civil procedure law of the new China has stumbled through fifty-five years. Reflecting on the past, the footprints of civil procedure law leave one's heart pounding and thoughts in turmoil. In a country that values human rule over the rule of law, in a society that prioritizes criminal law over civil law, substance over procedure, the germination, breaking through, growth, and budding of civil procedure law into a tender flower in the legal garden have been incredibly arduous. As is well-known, since the founding of the country, China has successively promulgated two civil procedure codes: the 1982 trial draft of the Civil Procedure Law and the 1991 Civil Procedure Law. The publication of the trial draft marked the birth of civil procedure law with a strong annotation flavor, and the implementation of the Civil Procedure Law ushered in the reform of civil trial methods and the general framework of civil procedure law theory. With the arrival of the new century, against the backdrop of major changes in the country's political, economic, cultural, military, and diplomatic situations, civil procedure law is facing new challenges. It is necessary to sum up the past, carefully sort out historical lessons; calmly face the present, comprehensively summarize judicial experience; accurately introduce advanced concepts and systems from abroad, coupled with scholars' innovative thinking rooted in the local context, civil procedure law will usher in a new stage of development. In this special historical period of connecting the past and the future, under the efforts of numerous comrades working tirelessly to fulfill historical missions, this series named "Frontiers of Civil Procedure Law in the 21st Century" (hereinafter referred to as "Frontiers") has finally been launched. Over time, some provisions of the Civil Procedure Law promulgated in 1991 have increasingly shown shortcomings that lag behind judicial practice. The task of radically transforming the current civil procedure system and revising a civil procedure code that is guided by advanced concepts, rich in content, more operational and targeted, with a reasonable structure, and composed of sound procedures and systems has been put on the agenda of the legislative body. The new civil procedure code should be forward-looking and adaptable to the expectations of civil procedure mechanisms and functions in the economic and social development in the coming years. To this end, it must be based on the national conditions and judicial practice while also elevating or surpassing them. To accomplish this arduous task, strong theoretical support from the civil procedure law community is required, which demands that civil procedure law research completely break out of the confines of annotation law and develop into a true theoretical legal system. It should make full use of research methods from legal philosophy, legal sociology, and related fields such as history and economics to form a mature and systematic methodology system, 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 approach.
First, achieving a shift in the focus of civil procedure law research 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 system critique than system construction. Discussions on procedural value, procedural guarantee, the relationship between procedural and substantive justice, and the autonomy of parties in procedural matters established the value concepts of civil procedure at the level of legal philosophy. 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, it is necessary to meticulously conceptualize and construct specific systems, which will become an even more urgent topic for civil procedure law research in the 21st century.
Second, civil procedure law research must provide a theoretically unified, coordinated, and comprehensive support for the construction of civil procedure legal systems and ultimately achieve a dynamic connection between theoretical research and judicial practice. Currently, the basic theory of civil procedure law in China is still the level of pure theoretical discussion and has not permeated the design of specific procedural systems. Research on the major basic theories has not been integrated with a coherent common legal rationale. For example, the theory of procedural subject matter 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 has neither been integrated nor conducted in-depth analysis in light of current legislation or judicial practice. The theories of procedural right, procedural purpose, and civil procedure legal relations are also in a similar 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 in the era of theoretical renewal and system reform, theoretical construction must pay particular attention to coordinating a series of relationships: the consistency of legal concepts and basic principles in each major theory, the internal logical consistency of the doctrines adopted in each theory, the compatibility between basic theories and the design of legal systems that depend on them, and the seamless integration of new theories with old theories in system design. Only in this way can a coherent common legal rationale unify the research on each major theory, achieve internal integration of the entire civil procedure law theoretical system, and form a unified basic theoretical system of civil procedure law. This is another major task for civil procedure law research in the new century.
Third, strengthening the study of comparative civil procedure law. The "discontinuity" in China's legal system and legal research caused by history 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 theoretical levels. The application of comparative civil procedure law research methods and the use of civil procedure systems and theories from law-abiding countries around the world can help these resource deficiencies. Based on this, there has been a significant increase in the introduction of modern civil procedure systems from Western law-abiding countries such as the UK, the US, Germany, France, and Japan in recent years, but there is a lack of a complete and systematic introduction to foreign legislation, which may lead to superficial understanding and selective interpretation. Moreover, the introduction of foreign systems often lacks effective comparison with the domestic context, 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 theory of civil procedure law by Western scholars 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 use of foreign civil procedure systems and theories lack theoretical support.
Fourth, strengthening empirical research. The excessive focus on pure theoretical discussion 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, civil procedure law research must achieve a healthy communication between theoretical research and social practice through an empirical sociological study to have a practical impact on social development, which is currently lacking in civil procedure law research. Overall, there has been too much focus on pure theoretical discussion at the level of research, while empirical research has been insufficient; the proposal of certain value concepts is often based on pure logical deduction without strong support from empirical research; and the proposal of certain system concepts is often based on a biased introduction of foreign systems without enough attention to the empirical social environment support required. Based on this, we must strengthen empirical civil procedure law research, 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 concepts 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 country, the Constitution determines the composition and structure of state power, leads 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 national power system and institutional 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 judicial power by the Constitution; and 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, and the judicial system constrains the institutional framework and operational environment of the entire Civil Procedure Law. Therefore, civil procedure law research must pay sufficient attention to the relationship between the Civil Procedure Law and the Constitution to find a constitutional basis for the theoretical support it provides for specific system construction and maintain 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 research 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 theoretical community of civil procedure law in China has reached a consensus: civil procedure is a "field" where civil substantive law and civil procedural law work together. Civil procedure law cannot be an isolated system with no connection to civil substantive law, and combining the research of civil substantive law with civil procedure law 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 theory and the construction of civil substantive legal systems supported by civil substantive law theory, and ultimately achieve a dynamic balance at the practical level of system implementation. Despite this, due to the lack of coordination from the civil substantive law community, and the overall difficulty in simultaneously covering both fields of knowledge for research subjects in both disciplines, the research in these two disciplines remains in a state of mutual independence and isolation. Communication is thus extremely challenging. For example, on the major issue of burden of proof, which both disciplines face, there seems to be no common language. Civil substantive law pays little attention to the research efforts of civil procedure law in this field, and there is still no regular communication channel for observation perspectives or related academic activities.
Seventh, gradually forming a diversified and multi-dimensional methodology system for civil procedure law. In recent years, with the rejuvenation of the civil procedure law research community, its subject consciousness has increasingly broken free from the constraints of traditional ideological concepts, effectively promoting the diversification and multi-dimensionality of research methods in civil procedure law. The "autocratic" status of annotation law has been broken, and civil procedure law has gradually broken through these limitations and entered 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, and the latest achievements of legal philosophy research are providing strong support for the further development of civil procedure law. In terms of methodology, 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 community. However, this diversified and multi-dimensional methodology system is still in a relatively weak formative stage, and to enable civil procedure law research to truly shoulder the responsibility of providing comprehensive and systematic theoretical support for system construction, a sound, diversified, and multi-dimensional methodology system is essential. This requires civil procedure law research in the 21st century 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. To this end, the "Frontiers" series will continue to uphold the advantages of traditional annotation 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 explain 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 theoretical system of civil procedure law while striving for coordination with related substantive law research. In line with the openness of this methodology system, the "Frontiers" series will not adopt a chapter-based structure but will focus on thematic explanations. Thus, it aims to replace the formal systematicity represented by chapter-based writing and the connotation of legal code annotation with the substantive systematicity inherent in the theoretical system. All of these arrangements are aimed at constructing a systematic theoretical system of civil procedure law based on a systematic methodology system and ultimately providing 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 Political Science and Law College, pioneered the training of master's students in civil procedure law research in China in 1979. Over the past 25 years, the training of master's students in civil procedure law across the country has made significant progress in both quality and quantity, but to this day, civil procedure law graduate teaching still lacks a systematic, authoritative, and comprehensive teaching manual, which is indeed a regrettable matter. According to the author's knowledge, most master's students in civil procedure law in higher education institutions refer to undergraduate law textbooks. It should be noted that with the publication of the trial draft of the Civil Procedure Law and the implementation of the 1991 Civil Procedure Law, the teaching of civil procedure law in law faculties of higher education institutions has gradually flourished, and a large number of textbooks have been written by official, civilian, and individual authors. This batch of