Civil judgment system in the period of transformation

Author: Yoshinobu Ayano (Japan)
Publisher:
Publish Date: 2004-12-01
Features: The significance of civil judicial system studies in a rule-of-law society and their prominent role in China's burgeoning judicial reform process need no elaboration. However, the sudden increase in demand for civil procedural law research due to the expansion and gradual deepening of civil judicial system reforms has not lifted China's civil procedural law from its status as a "weaker discipline." Due to the long-standing legal culture of "emphasis on criminal law over civil law" and "emphasis on substantive law over procedural law," the accumulation of civil procedural law studies in China is severely insufficient, particularly in the fields of foreign civil procedural law and comparative civil procedural law, where progress has been slow. In terms of research material collection, researchers' knowledge reserves, and research methods, there is a clear lack of depth and backwardness. This situation severely limits academic perspectives and standards, failing to meet the needs of legal reform and disciplinary development. Therefore, even today, when original information channels are well-developed and translations of literature from other disciplines are abundant, it remains necessary and urgent to introduce authoritative, systematic, and principle-based academic works on foreign civil procedural law. Especially before the revision of China's Civil Procedure Code, a comprehensive understanding of modern civil procedural law systems in Western countries, often cited as authoritative by Chinese academia, may reduce futile debates akin to "blind men" and piecemeal legal transplantation. An in-depth examination of the background, functions, principles, and value goals of these systems will help foster a comparative research environment that is problem-oriented, context-dependent, multidimensional, and dynamic, avoiding the situation of merely imitating others in legal transplantation.
The "Essentials of Civil Procedural Law Translation Series" was born out of these backgrounds and needs. In terms of topic selection, the series fully considers the legal cultural context of Chinese readers and the ongoing judicial reforms, striving for comprehensiveness in legal jurisdictions, diversity in themes, and classicism in original works, while avoiding repetition with existing translations. Among the selected works from the United States, Germany, the United Kingdom, France, Japan, and Russia, each highlights the distinctive features of its respective civil procedural systems.
Currently, existing domestic works on "American Civil Procedure Law" primarily introduce only the trial stage of proceedings, whereas in the U.S., appellate procedures are a separate series independent of trial procedures in legislation, practice, and the entire judicial structure and philosophy. Therefore, this series includes three American works: one on trial courts and trial procedures, another on appellate courts and appellate procedures, and a third on the Supreme Court and its unique appellate procedures.
Since there are already translations of German civil procedural law textbooks in China, we have selected only one concise textbook that received positive feedback in Germany, along with another academic paper by a German scholar that was specially compiled for this series, reflecting the profound influence on the formation of Germany's current civil procedural system. Additionally, an appendix includes a famous discussion by an American scholar on learning from German civil procedural law, which provides insights into the background, approach, and evaluation of Germany's civil procedural law reforms.
Although the British Civil Procedure Code was revised in 1998 to reflect modernity, the civil procedural system shaped by the British royal culture remains vastly different from China in both philosophy and structure. Moreover, China already has translations and monographs on this reform. Therefore, the two books by British authors selected for this series are works of comparative law in nature. One is a classic theoretical work that compares the three major procedural law systems in Europe—British, French, and German—through a cultural lens, while the other introduces the crises and responses faced by civil judicial systems worldwide in the contemporary era.
The French civil procedural system, both as one of the three major models and in terms of its relevance to China (including lessons and experiences), should be a key focus for Chinese researchers. However, French legal works are scarce in China, and their translations lack credibility. It is hoped that the selected textbook by this renowned international civil procedural law scholar from France will help fill this gap.
As for the current civil procedural system in Japan, domestic introductions are already relatively comprehensive. Therefore, the series selects two marginal topics: one on the history of Japanese civil procedural law, which provides insights into the historical, cultural, political, and economic foundations of the current system and the general trajectory of civil procedural law development in the civil law tradition; the other on Japan's alternative dispute resolution (ADR) mechanisms.
Russia, with its shared or similar legal heritage in the development of jurisprudence with China, is an indispensable part of comparative civil procedural law studies, whether for exploring the origins of China's current judicial system or for learning from or reflecting on the construction of civil procedural systems during the transition period. Thus, it is naturally included in this series.
Additionally, with the rapid development of European integration, the profound influence of the EU's judicial system on civil procedural systems of member states and neighboring countries has made it an indispensable part of studying procedural law systems in Europe, which is also a focus of this series.
The significance, hardships, and methods of legal translation have been discussed by countless translators in numerous insightful ways. During the process of translating, reviewing, and organizing this series, I often recalled the words of one translator: "Whoever wants to go to hell should become a translator!" When we completed this work with equanimity, saying, "If I don't go to hell, who will?" we could calmly await the judgment of the readers, as every translator and reviewer had poured their hearts into the task. If this diligent cultivation can sow a few healthy seeds in the garden of civil procedural law studies, then the satisfaction will not only come from the translators and reviewers benefiting from meticulous word choices but also from being the only way to repay those colleagues who have shown attention and support in the production of this series. Among these respected peers, I must mention Professor Zhiming Zhang, who co-chaired this project, as well as Professor Wei Jiang and the entire research team of the "International Workshop on Civil Procedural Law Scholars" and the "Comparative Civil Procedural Law Symposium," which laid the foundation for this project.
Fu Yulin
July 15, 2005