Civil Procedure Law Colloquium. Volume 10

Author: Chen Guangzhong Jiang Wei
Publisher:
Publish Date: 2005-07-01
Features: A heavy snow covered Beijing. In the cold weather, a new volume of "Essays on the Theory of Procedure Law" was compiled. As an editor, seeing the carefully selected articles arranged in order, it felt like seeing old friends and new acquaintances gathered together to discuss academic issues in procedural law, bringing a warm sense of comfort to the heart. The Criminal Procedure Law section includes 14 articles. These articles reflect the rational thinking of procedural law scholars on judicial reform, procedural theory, and systems from multiple perspectives. Many of the articles have novel themes and perspectives, offering great inspiration. This section still maintains traditional columns such as theoretical research, practical research, evidence law research, and foreign law. In the theoretical research column, we have included Huang Songyou, Vice President of the Supreme People's Court, "Improving the Procedural System and Promoting Judicial Reform," which is an excerpt from his speech at the 2004 annual conference of the Procedural Law Society. Huang has many years of experience in judicial adjudication and has long been thoughtful about procedural systems and judicial reform. In the article, he proposes suggestions for improving China's, believing that "the not only applies to light criminal cases with sentences of less than three years, but also to cases with longer sentences"; he suggests establishing a system where bail is the primary measure and detention is secondary for improving the detention system; he praises the practice of some countries not stipulating trial deadlines in procedural law; and recommends learning from foreign experience to establish a pretrial system. The article also proposes suggestions on witness testimony systems, evidence presentation systems, death penalty review systems, and trial supervision procedures. These views are worth attention from the legislative, judicial, and academic sectors.
Dr. He Chaoming, Prosecutor General of the Macau Special Administrative Region, wrote "The Status and Value Orientation of Prosecutorial Power in Criminal Procedure," which was submitted at the International Symposium on "Challenges in the 21st Century" held in Macau in December 2004. The author introduces the Macau prosecutorial system, the status and value orientation of prosecutorial power, and elaborates on his personal views, providing a good window for understanding Macau's relevant systems. The warrant system constitutes an important part of modern criminal procedure systems and is worth in-depth and systematic research. Song Shijie and Chen Zhimin's "On the Warrant System" offers a valuable attempt to discuss the procedures for applying for and issuing warrants, with their theoretical analysis also being quite reasonable. Wang Haiyan and Zhang Xiaoling's "On the Relevance Rule and the Rule of Relevance" conduct an in-depth analysis of the relevance rule, a core evidence rule common to major countries worldwide. From a comparative law perspective, they distinguish between the relevance rule and the rule of relevance, and ultimately propose unique insights on how China can establish its own relevance rule.
In the practical research column, we have included "A Survey Report on Criminal Legal Aid in Some Parts of Yunnan Province" written by the Research Team of the Criminal Legal Aid Department of the Ministry of Justice. The research team conducted a 10-day investigation and study on criminal legal aid issues in Kunming, Xishuangbanna, Lijiang, and Dali Bai Autonomous Prefecture in Yunnan Province. This report is the result of that research. The report summarizes funding guarantees, the functional positioning of legal aid institutions, the handling of criminal cases, the implementation procedures of legal aid, the economic subsidies for legal aid lawyers, and the quality of defense. The provided data and typical cases are valuable, and the issues raised and suggestions made are worth attention.
Nie Zhaowei's article in this section explores the conciliation system for parties in light injury cases, based on the Public Prosecution Party Conciliation System stipulated in the recent "Opinions on Several Issues of Applying Law to Current Light Injury Criminal Cases" issued by the Higher People's Court of Zhejiang Province. The article proposes establishing a criminal conciliation system, with a relatively novel topic. However, the article does not directly discuss how the principle of party autonomy can be applied in public prosecution cases and intentionally or unintentionally avoids certain content in the opinions that contradicts the current Criminal Procedure Law. This is a shortcoming of the article.
In the evidence law research column, we have included "Facts and Truth in Procedural Proof" by Li Yuhua and "An Initial Exploration of the Rule of Judicial Knowledge" by Zheng Weimi. The former analyzes the contentious issue of facts and truth in procedural proof, while the latter explores the rule of judicial knowledge, both offering valuable insights and worth reading.
The foreign law column includes three articles. Zhang Zhong's "Analyzing 'Double Jeopardy'—A Perspective on the Historical Evolution of the U.S. Rule Against Double Jeopardy" is a well-crafted piece. The article traces the history of the rule against double jeopardy, providing accurate data and well-supported arguments, making it a good paper for interpreting the rule. Huang Bin and Li Huidong's "The 1999 Access to Justice Act" reviews the reform of British legal aid and its implications for China's legal aid system, offering some reference value. "Access to Justice" has become increasingly popular in procedural law research in China, but translating "access to" directly as "" may not be ideal, as "access to" also means "obtaining." Zhang Shu's "The Evolution and Analysis of the French Preliminary Investigation System" provides a clear overview of the development of the French preliminary investigation system, analyzes its deep-seated reasons for development, and examines modern features of criminal pretrial procedures in the context of the French system.
In the doctoral dissertation highlights section, we have included Chen Yingxin's "Reflections on the Rationality of China's Criminal Procedure Law." Procedural philosophy is a major topic in procedural law, and this paper reflects on procedural philosophy, proposing several standards for the rationality of criminal procedure law. Based on this, it provides an in-depth and specific analysis of the rational and irrational aspects of China's current criminal procedure law.
The Civil Procedure Law and Administrative Procedure Law section includes 12 academic papers. In the theoretical research section, Tong Zhaohong and Zhang Qingshan's "Bankruptcy and Enforcement: Functional Positioning and Institutional Coordination" clarifies the mechanisms of bankruptcy and enforcement as debt realization systems and aims to promote the construction of a social credit system and the stability of the market economy order through institutional design.
Regarding judicial clarification, people often associate it with civil law systems. Xie Wenzhe's "Legislative Reforms and Inspiration of Judicial Clarification—A Study Centered on Germany and the United States" provides a detailed argument for the value of the clarification system in common law systems and constructs China's clarification system with the relationship between party autonomy and judicial power as the core. Han Bo's "Resolving Paradoxes: The Disclosure System in Adversarial Procedure" argues that the disclosure system itself contains elements that deconstruct adversarial procedure, and to resolve this paradox, the author proposes unique insights from legal culture, procedural improvement, and the redistribution of responsibilities among procedural subjects.
In the legislative and practical research section, Liu Yaling's "Judicial ADR and the Construction of Non-Litigation Dispute Resolution Mechanisms in Chinese Courts" discusses the value of judicial ADR, which has been widely rising worldwide, for China's realization of diversified dispute resolution mechanisms. Feng Renqiang's "Interpretation and Reconstruction—On Improving the Civil Appeal Procedure" analyzes the theoretical disputes and conflicts of interest between the prosecutor and the law in the current civil appeal system with a calm tone and explores how to construct a civil appeal procedure with Chinese characteristics through institutional design. Xu Jijun's "Dynamic Changes in the Reform of Expert Witness Liability Systems Abroad and Their Implications for China" clarifies that China should establish and improve the liability mechanisms for experts and expert assistants under the principle of truthfulness.
Arbitration is different from litigation in terms of fact and legal judgment. Wang Zuxing's "Thoughts on Improving China's Arbitration Evidence System—With Reference to the Civil Procedure Evidence System" examines the special formal and substantive rules of arbitration evidence from both static and dynamic perspectives and proposes ways to improve the legal positioning, completeness of provisions, authorization of arbitration tribunals, and distribution of the burden of proof in China's arbitration evidence system. Yu Haisheng's "Exploration of the Theory of Res judicata in Assignment Proceedings" makes a valuable exploration of this important basic theory in procedural law.
In the foreign-related civil procedure section, we have included He Qisheng's "Domain Electronic Delivery and the (Hague Convention on Judicial Assistance)," which provides a detailed introduction to the relevant legislation and judicial practices of domain electronic delivery in various countries, as well as the persistent efforts of the Hague Conference on Private International Law, analyzing the feasibility of electronic delivery.
In the foreign law section, Zhu Hongwen and Wang Jian's "The Application and Legal Practice of Expert Determination in Commercial Dispute Resolution in the UK" elaborates in detail on the economic and efficient commercial dispute resolution method of expert determination from the aspects of judicial intervention, the enforcement of expert decisions, and the responsibility of experts, and discusses its rational application in China.
In the administrative procedure law research section, Zhao Qinglin and Liu Yiqi's "Research on Administrative Contract Litigation—With a Discussion on the Modern Transformation of China's Administrative Procedure Law" argues that traditional administrative procedure law and the resolution of administrative contract disputes are not compatible, and that retaining the concept of administrative acts while constructing a separate administrative contract litigation mechanism in China, and structurally reorganizing the current administrative procedure law system, is a feasible solution to this problem.
In the doctoral dissertation highlights section, Xiong Yaomin's "Reform of China's Civil Procedure Preparation Procedure: Models and Analysis" strictly defines the meaning of the preparation procedure and clarifies that the justification for the preparation procedure lies in the rationality of trial and the centralization of trial, while analyzing several reform attempts in China regarding the preparation procedure, proposing suggestions for constructing China's preparation procedure from the aspects of subjects, tasks, and positioning.