Open the Doors of Justice: A Study on the Civil Lawsuit System

Author: Cui Feng
Publisher:
Publish Date: 2005-11-01
Features: Since the 1980s, judicial reforms have been carried out almost worldwide. One of the goals of this judicial reform is to make it easier for people to access justice, that is, to safeguard citizens' right to sue. The profound changes in China's social structure brought about by the reform and opening-up have led to a significant increase in various civil disputes, resulting in a certain degree of "litigation explosion." However, many disputes, when submitted to the courts, are often rejected by the court or verbally informed of "non-acceptance." If social disputes are not resolved through a sound dispute resolution mechanism, people may resort to illegal means, which could lead to greater social disputes or even unrest. Therefore, the protection of the right to sue in civil cases plays a pivotal role in the orderly resolution of social disputes and the maintenance of social stability. The issue of the right to sue is a broad topic in civil procedural law. This book abstracts the design principles or legal theory of the civil right-to-sue system from a general perspective, based on the legislative and judicial practices of major countries in the common law and civil law systems, and combines China's current realities to propose a macro-level vision for improving China's civil right-to-sue system. The book is divided into four parts.
Part 1, The Basic Concepts of the Right to Sue in Civil Cases. The concept of law is the abstract value orientation of people's value judgments on legal systems and the formulation of rules. Legal systems are specific behavioral rules formulated based on legal concepts. The basic concept of the right to sue in civil cases is: the right to sue is a fundamental right of citizens, and the protection of the right to sue is a fundamental obligation of the state toward its citizens. As people's material and spiritual living standards improve, the substantive rights granted by law will continue to increase. If these rights are not protected by corresponding procedural rights, they will remain on paper. The right to judicial remedy (right to judicial remedy) or access to court (access to court) or access to justice (access to justice) refers to the right of individuals to demand judicial hearing and judgment when their rights or freedoms are illegally infringed upon. It is a concept of rights that emerged after World War II as people's understanding of human rights deepened. The right to judicial remedy includes two aspects: first, no refusal to accept; second, no refusal to adjudicate. As one aspect of the right to judicial remedy, the right to sue in civil cases is both related to and distinct from substantive civil rights. The connection between the right to sue in civil cases and substantive civil rights is manifested in that the basis of the right to sue in civil cases is substantive civil rights, and substantive civil rights should include the right to sue in civil cases. However, substantive civil rights and the right to sue in civil cases are relatively separate, meaning that individuals who enjoy the right to sue in civil cases may not necessarily enjoy substantive civil rights. To date, China has not incorporated the right to judicial remedy as a fundamental right of citizens into its constitution. The recently concluded Second Session of the 10th National People's Congress passed the "Amendment to the Constitution of the People's Republic of China," adding the clause "the state respects and safeguards human rights." The provisions in the constitution that respect and safeguard human rights indicate that the mainstream consciousness in China has undergone a fundamental shift in concept, from stipulating rights to respecting and safeguarding rights, emphasizing the practicality of rights. In my opinion, the protection of the right to judicial remedy should be an inherent part of human rights protection. As China's political civilization continues to develop, the right to judicial remedy as a fundamental right of citizens should be clearly enshrined in the constitution.
Part 2, A Review of Civil Right-to-Sue Systems in Foreign Countries. By examining the specific provisions of civil right-to-sue systems in civil law and common law countries, we can explore the underlying concepts and intentions of these provisions, thereby identifying experiences that can beed by China's legislation and judiciary. The characteristics of France's civil right-to-sue system can be summarized as follows: first, it has established a right-to-sue system. The Civil Procedure Code of France stipulates that the right to sue refers to the procedural right to sue. The provisions of the Civil Procedure Code have greatly promoted the formation and popularization of procedural concepts. Second, it has established a system of collective litigation qualifications. This provides another important channel for protecting the rights of individuals (members of guilds). Germany's civil right-to-sue system has the following three characteristics: first, it stipulates the defendant's duty to respond. That is, if the defendant fails to submit a response within the specified time or submits a response but does not effectively refute the facts raised by the plaintiff, they may face the consequences of losing the case. This provision enhances the adversarial nature of litigation and improves efficiency. Second, it stipulates the requirements for litigation. This provision provides judges with the procedural conditions that must be met to render substantive judgments in litigation, and it also provides the parties to the litigation with targets for procedural attacks and defenses, thereby elevating the role and value of procedures in litigation. Third, it stipulates a relatively comprehensive system of consolidated claims. It is particularly worth mentioning that by stipulating both attached and elective consolidated claims, it grants parties more choices, more fully protects their substantive rights, simplifies litigation procedures, aligns with parties' reasonable expectations of the law, and facilitates the enforcement of judgments by the court. Japan's civil right-to-sue system is mainly modeled after Germany, but it also has its own characteristics: first, it clearly distinguishes between the requirements for filing a claim, the requirements for litigation, and the requirements for protecting rights. This distinction is beneficial in clarifying the tasks of different stages of litigation and ensuring that the functions of procedural rights are fully realized. Second, it comprehensively stipulates the system of litigation costs. The Civil Procedure Code of Japan provides detailed provisions on the scope, burden, guarantee, and litigation assistance of litigation costs, providing rules for litigation. The characteristics of the UK's civil right-to-sue system are as follows: first, it has a broad system of counterclaims and additional claims. The UK's Civil Procedure Rules Chapter 20 stipulates counterclaims and other additional claims, according to which the scope of claims that can be filed is quite broad. This system greatly facilitates parties in conducting litigation, allowing multiple disputes and multiple parties to be resolved in a single litigation in terms of procedure. Second, the UK's scope of litigation costs is relatively broad. The UK court's litigation fees include not only court fees but also attorney fees. This system reduces the litigation costs of the winning party and, to a certain extent, encourages civil litigation. Compared to the United States, the civil right-to-sue system in the United States is quite comprehensive. Its characteristics are as follows: first, it stipulates a relatively broad system of counterclaims and cross-claims. U.S. counterclaims do not necessarily require a connection with the main claim, which broadens the scope of for counterclaims. Parties to a class action can file cross-claims, allowing disputes between class action members to be resolved along with the main claim. Second, it has established systems of claim introduction and claim intervention. This allows third parties to participate in litigation more conveniently based on their status in the litigation, limits the arbitrary power of judges, and improves litigation efficiency. Third, it stipulates a class action system. U.S. class actions have a broad scope of application, providing an irreplaceable institutional guarantee for promoting civil rights movements and protecting the rights of numerous consumers and victims.
Part 3, A Review and Reflection on China's Civil Right-to-Sue System. If we blindly transplant foreign systems and experiences without considering China's specific legal traditions and realities, it is inevitable that they will not fit. Therefore, it is necessary to study the past and present of China's civil right-to-sue system to identify the problems. The typical traditional society in China mainly refers to the feudal society. In feudal China, Confucianism dominated the ideology. Confucianism pursued a goal of a harmonious world where "all under heaven is one family" and advocated "no litigation" and "shame in litigation." As a result, mainstream society paid little attention to or made little effort in establishing specific judicial systems or legal institutions. The influence of Confucian legal thought and institutions on contemporary Chinese people is still subtle. Under the pressure of domestic and foreign policies, the Qing government modeled its Civil Procedure Code after Japan and Germany and drafted the "Draft Civil Procedure Code of the Great Qing." Although the Qing government fell before the draft could be implemented, it became the blueprint for the Civil Procedure Code of the Republic of China. It can be said that from this point on, Chinese legal scholars began to recognize the importance of the civil litigation system to judicial fairness. The 1911 Xinhai Revolution overthrew the Qing Empire and established the Republic of China. Due to the lack of normal social order, the law could not be effectively implemented. During this period, the Communist Party of China was established in 1921, and after liberating vast rural areas of China, it established a people's judicial system in the liberated areas. The most prominent feature of the people's judiciary was the mass line, judicial cadres no longer judged cases based on complaints and documents but went out of the office to adjudicate locally. Moreover, litigation fees were abolished, making litigation more convenient for parties, and disputes were resolved through mediation, simplifying litigation procedures. It can be seen that the judiciary in the liberated areas still followed the dispute resolution methods of China's feudal society, but the "principles" on which mediation was based were different. In feudal society, it was "ritual," while in the liberated areas, judicial mediation was more based on communist ideology and folk customs. During this period, the people's judiciary focused more on maintaining social order, and procedural awareness was very weak. After the founding of the People's Republic of China, due to the emphasis on social stability and political movements, the Civil Procedure Code was not established until 1982. Although it was formally implemented after revisions in 1991, the code was still too brief and arbitrary in practice. In my opinion, the reasons for the backwardness of China's civil right-to-sue system are as follows: first, China lacks in-depth research and understanding of the nature of human beings, placing too much trust in people and neglecting institutions; second, the study and emphasis on the right to sue are insufficient. The right to sue is based on the theoretical foundation and logical starting point of the right to sue, and if the right to sue is not valued, the concept and system of the right to sue will lack a foundation; third, China is accustomed to replacing law with words and morality, and to some extent, the legal community has not truly established the concept of "the law is supreme" to this day.
Part 4, Opening the Doors to Justice: Macro-Level Thinking on Improving China's Civil Right-to-Sue System. At the macro level, the main problems in China's civil right-to-sue system are: a narrow scope of civil case acceptance, unreasonable stipulations for filing a claim, excessively high case acceptance fees, failure to merge cases that should be merged, and a lack of regulation on frivolous litigation. These issues prevent parties from fully and effectively utilizing judicial resources. Therefore, it is necessary to reform the civil right-to-sue system in these key aspects. In my opinion: Given the current legislative and judicial situation in China, the scope of case acceptance should be expanded, meaning that courts should accept disputes involving rights and obligations regulated by civil law, disputes arising from civil rights and obligations that are currently being formed, and disputes that result in civil rights damage due to the infringement of fundamental constitutional rights. The conditions for filing a claim should be lowered, meaning that as long as the formal requirements are met, courts should accept claims. The current standards for court acceptance fees should be reformed to make the basis for fees more reasonable and reduce fees. The system of consolidated litigation should be stipulated, meaning that courts must not refuse to merge cases that can be merged. In addition, while protecting the right to sue, actions that abuse the right to sue should be regulated, and the penalties for frivolous litigation should be increased to gradually improve the rules for the right to sue.