Open the Doors of Justice – A Study on the Civil Litigation System

Author: Cui Feng
Publisher:
Publish Date: 2005-11-20
Features: Since the 1980s, judicial reform movements 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 guarantee citizens' right to sue. The tremendous changes in China's social structure brought about by the reform and opening-up have led to a significant increase in civil disputes, resulting in a certain degree of "litigation explosion." However, many disputes, when filed with the court, are often rejected by the court through written or oral notification of "non-acceptance." If a good dispute resolution mechanism is not in place to resolve social disputes, people may resort to illegal means, which could lead to greater social conflicts or even unrest. Therefore, the protection of the right to sue in civil matters plays a pivotal role in orderly resolving social disputes and maintaining social stability. The issue of the right to sue is a broad topic in civil procedure law. This book abstracts the design principles or legal theory of the civil lawsuit system from a general perspective, based on the legislative and judicial practices of major countries in both the civil law and common law systems, and combines China's current realities to propose a macro-level vision for improving China's civil lawsuit system. The book is divided into four parts.
Part I, Basic Concepts of the Civil Lawsuit System. The concept of law is the abstract value orientation of people's value judgments on the value of legal systems and the formulation of rules. Legal systems are specific rules formulated based on legal concepts. The basic concept of the civil lawsuit system is that the right to sue in civil matters is a fundamental right of citizens, and the protection of the right to sue is a fundamental obligation of the state towards its citizens. As people's material and spiritual living standards improve, the substantive rights granted by law will continue to increase. Without corresponding procedural rights to protect these rights, they will remain merely on paper. The right to judicial remedy (right to judicial remedy) or the right to access the court (access to court) or the right to access justice (access to justice) refers to the right of individuals to require judicial authorities to provide a hearing and judgment when their rights or freedoms are illegally infringed. 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 matters is both related to and distinct from substantive civil rights. The connection between the right to sue in civil matters and substantive civil rights is manifested in that the basis of the right to sue in civil matters is substantive civil rights, and substantive civil rights should include the right to sue in civil matters. However, substantive civil rights and the right to sue in civil matters are relatively separate, meaning that individuals who enjoy the right to sue in civil matters may not necessarily enjoy substantive civil rights. To date, China has not enshrined the right to judicial remedy as a fundamental right of citizens in its Constitution. The recently concluded Second Session of the Tenth National People's Congress passed the "Amendment to the Constitution of the People's Republic of China," adding the clause "the state respects and protects human rights." The provisions in the Constitution that respect and protect human rights indicate that the mainstream consciousness in China has undergone a fundamental shift in concept, from the previous stipulation of rights to the current respect and protection of rights, emphasizing the practicality of rights. I believe that 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 should be clearly enshrined as a fundamental right of citizens in the Constitution.
Part II, Review of Civil Lawsuit Systems in Foreign Countries. By examining the specific provisions of civil lawsuit systems in civil law and common law countries, we can explore their underlying concepts and intentions, thereby identifying experiences that can beed by China's legislation and judiciary. The characteristics of France's civil lawsuit 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 on the right to sue 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 lawsuit system has the following three characteristics: first, it stipulates the defendant's duty to respond. That is, if the defendant fails to submit a reply within the specified time, or submits a reply but does not effectively refute the facts raised by the plaintiff, it may face the consequences of losing the case. This provision enhances the adversarial nature of litigation and improves litigation efficiency. Second, it stipulates the requirements for litigation. This provision provides judges with the procedural conditions that must be met to make substantive judgments in litigation law, and also provides the parties to the litigation with targets for procedural attack and defense, 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 ancillary consolidated claims 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 execution of judgments by the court. Japan's civil lawsuit system is mainly modeled after Germany, but it also has its own characteristics: first, it clearly distinguishes between the requirements for initiating a lawsuit, the requirements for litigation, and the requirements for protecting rights. This distinction is beneficial in clarifying the tasks of different stages of litigation, allowing the functions of procedural rights to be 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 lawsuit 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 lawsuits 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 lawsuit. 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 lawsuits. Compared to the United States, the civil lawsuit 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 against each other, allowing disputes between parties to a class action 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 III, Review and Reflection on China's Civil Lawsuit System. If we blindly transplant foreign systems and experiences without considering China's specific legal traditions and realities, it is inevitable that there will be "culture shock." Therefore, it is necessary to study the past and present of China's civil lawsuit system to identify the problems. The typical traditional society in China refers mainly to the feudal society. In feudal China, Confucianism dominated the ideology. Confucianism pursued a goal of a harmonious world in governance, where the world belonged to all. In terms of concepts, it advocated non-litigation and shame in litigation. As a result, mainstream society paid little attention to and made little contribution to the specific judicial system and legal system. The influence of Confucian legal thought and institutions on the concepts of 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 this draft was not implemented due to the fall of the Qing government, 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 professionals began to recognize the importance of the civil lawsuit 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, with a very weak sense of procedure. After the founding of the People's Republic of China, due to the emphasis on social stability and political movements, the Civil Procedure Law was not established until 1982. Although it was formally implemented after revisions in 1991, the law remained too brief and arbitrary in practice. In my opinion, the reasons for the backwardness of China's civil lawsuit system are as follows: first, China lacks in-depth research and understanding of the essence of human nature, placing too much trust in people and neglecting systems; 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. If the right to sue is not valued, the concept and system of the right to sue will lack a foundation; third, there is a tendency to replace law with words and morality, and to some extent, the legal profession in China has not truly established the concept of law supremacy to this day.
Part IV, Opening the Doors of Justice: Macro-Level Thinking on Improving China's Civil Lawsuit System. On a macro level, the main problems in China's civil lawsuit system are: a narrow scope of civil cases accepted, unreasonable stipulations of conditions for filing a lawsuit, excessively high case acceptance fees, failure to merge lawsuits that should be merged, and a lack of regulation on frivolous lawsuits. This prevents parties from fully and effectively utilizing judicial resources. Therefore, it is necessary to reform the civil lawsuit system in these main aspects. In my opinion: given the current legislative and judicial situation in China, the scope of cases accepted 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 cause civil rights damage due to the infringement of basic constitutional rights. The conditions for filing a lawsuit should be lowered, meaning that as long as the formal requirements are met, courts should accept lawsuits. Regarding the acceptance fees of courts, the current fee standards should be reformed to make the basis for fees more reasonable and reduce fees. In the system of consolidated litigation, it should be stipulated that courts must not refuse to merge lawsuits that can be merged. In addition, while protecting the right to sue, actions that abuse the right to sue in civil matters should be regulated, and the penalties for frivolous lawsuits should be increased to gradually improve the rules for civil lawsuits.