Civil Procedure Law 2001 Volume - 2002 Volume

Author: / Country: Mainland China
Publisher:
Publishing Date: 2002-12-01
Features: Roman law already has provisions for the duty of truth. Roman law divides the unlawful acts of parties in litigation into three categories: (1) the intentional assertion of false claims in litigation; (2) the intentional violation of the law in seeking rights protection or defense; (3) the intentional obstruction of the discovery of the truth, although the claims made are true or have been approved by the court, but are made for the purpose of delaying or disrupting the litigation. Before Germany amended the Civil Procedure Code in 1933, scholars debated whether the duty of truth should be stipulated. There were differences between the negative and affirmative views. The representatives of the negative view included Wahha, Goldschmidt, etc. They believed that while the use of trickery and abuse of litigation violated the principles of litigation, the gradual abandonment of legal intervention in the relationship between parties and the shift to self-regulation through conscience discovery were trends in the historical development of litigation. The representatives of the affirmative view, such as Helwig and Bambach, argued that civil litigation is a system for protecting rights, not a system where parties rely on chance and use conscience-defying tactics to win. Moreover, assisting justice and combating illegality are inherent traditions of the Germanic people. If false claims are allowed, they may become the basis for court judgments, inevitably harming the interests of the opposing party. Therefore, parties should not be allowed to engage in fraud or fabricate lies in litigation. After fierce debate, the affirmative view prevailed in Germany when the Civil Procedure Code was amended in 1933. Article 138, Paragraph 1 of the Code explicitly states: "Parties must make full and truthful statements about the state of facts." In Japan, which adopted German civil litigation theory, the debate over whether to stipulate the duty of truth also exists between the negative and affirmative views. The negative view emphasizes that the duty of truth falls within the scope of moral and ethical regulation and should not be applied as a legal principle. Moreover, since civil litigation follows the principle of debate, the truthfulness of factual claims can be clarified through debate. If the law must stipulate the duty of truth, it will inevitably undermine the foundation of the principle of debate. The affirmative view, however, argues that the principle of debate is a system that provides a basis for factual evidence to achieve truthful judgments, and therefore must align with the principles of speed, fairness, and economy in litigation. Accordingly, the principle of debate is also a means to achieve truthful judgments. Japanese scholars generally believe that Articles 331 and 339 of the Civil Procedure Code of Japan are stipulated on the premise of the duty of truth, meaning that Japan has legally affirmed the duty of truth of parties. It is a common practice to establish the duty of truth for parties in civil procedure law. For example, Article 178 of the Civil Procedure Code of Austria in 1885, Article 222, Paragraph 2 of the Civil Procedure Code of Hungary in 1910, Article 242 of the Civil Procedure Code of Yugoslavia in 1930, and Article 88 of the Civil Procedure Code of Italy in 1942 all stipulate the duty of truth for parties. Although China's current Civil Procedure Code does not directly stipulate the principle of truth, the refusal of parties to testify in court or the intentional making of false statements does not affect the People's Court's judgment based on other evidence. However, scholars generally emphasize that parties must not abuse their litigation rights when exercising them, must comply with litigation order, and must respect the litigation rights of the opposing party and other litigation participants. If these claims can be combined with the duty of truth in interpretation, they will undoubtedly have more positive significance. It can be argued that from the perspective of safeguarding the litigation rights of parties, ensuring the smooth progress of litigation procedures, and achieving the goals of speed, fairness, and justice in litigation, it is necessary to apply the principle of truth in China's civil litigation. Currently, the principle of truth of parties can be emphasized through substantive interpretation of the current Civil Procedure Code to improve China's civil litigation system.
(II) Legal Consequences of Violating the Principle of Truth
If parties violate the principle of truth in civil litigation, they should bear certain legal responsibilities. According to Rule 11 of the U.S. Federal Civil Procedure Rules, the court may impose sanctions on parties or lawyers who violate the duty of truth, including certain litigation costs, such as the attorney's fees of the opposing party. Japanese scholar Shunsuke Saito has elaborated in detail on the procedural consequences of violating the duty of truth: first, it affects the content of the parties' debate, meaning that if the facts of the parties violating the duty of truth are confirmed by the court, the presiding judge will not adopt the parties' statements that violate the duty of truth when forming their judgment, and this non-adoption will have the same effect on all aspects of the debate; second, it imposes sanctions on the burden of litigation costs, meaning that even if a party wins the lawsuit, they must bear the unnecessary costs of litigation incurred due to their false statements. Judges rely on factual evidence to make judgments. In the field of civil litigation, except in special cases, the burden of proof rule requires parties to provide evidence to clarify the facts. To ensure the smooth progress of litigation and protect the legitimate rights and interests of parties, and to avoid overburdening the court, it should not be allowed for parties to make false statements with malicious intent to delay litigation, nor should it be allowed for parties to rely on speculative psychology to achieve victory. In the process of continuously improving China's civil litigation system, attention should be paid to absorbing advanced theories and legislative experiences from around the world to formulate a litigation truth principle that suits China's national conditions.
V. The Establishment of the Principle of Good Faith in the Litigation Conduct of Parties in China's Civil Litigation
(I) The Necessity of Applying the Principle of Good Faith in China's Civil Litigation
In my opinion, the necessity of applying the principle of good faith in China's civil litigation is mainly reflected in the following two aspects: , the basis for applying the principle of good faith lies in the litigation legal relationships between parties and between parties and the court. In these legal relationships, the principle of good faith has a broad scope of application. Applying the principle of good faith in the field of civil litigation is an inevitable and necessary trend in the development of litigation systems worldwide. Under the conditions of a socialist market economy, no one is allowed to abuse rights to harm the interests of others and society. As the subjects of litigation legal relationships, all parties must bear the obligation of good faith toward the other party, meaning that parties must truthfully fulfill their litigation obligations and exercise their litigation rights. Second, applying the principle of good faith in the field of civil litigation can balance the litigation interests of all parties. From the perspective of legislative studies, statutory law inevitably has loopholes due to various reasons. Judges cannot refuse to make judgments on cases simply because there are legal loopholes. To fill these loopholes, judicial practice requires judges to interpret the law. Legal interpretation is usually achieved through judges' assessment of the interests between parties in specific cases, and the main guiding principle for this assessment is the principle of good faith. In this sense, the principle of good faith is a litigation principle that judges must consider when exercising procedural discretion. For example, although China's Civil Procedure Code does not have explicit punitive provisions for various specific litigation behaviors by parties due to the abuse of litigation rights, the People's Courts can completely make corresponding sanctions based on the principle of good faith in judicial practice, considering the actual circumstances of the case and the extent of harm caused to the parties. In addition, the principle of good faith in litigation also has the possibility of filling loopholes in substantive law. For example, substantive law has very few specific provisions on the allocation of the burden of proof, but the People's Courts can allocate the burden of proof between parties based on the principle of good faith through the balance of litigation interests between parties in judicial practice.