Open the Doors of Justice (A Study on the Civil Litigation System)

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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 tremendous 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 that are brought to court are often dismissed by the court or verbally informed that they are "not accepted." If there is no good dispute resolution mechanism to resolve social disputes, 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 orderly resolving social disputes and maintaining social stability. The issue of the right to sue in civil cases is a broad topic in civil procedure law. This book only abstracts the design concepts or legal principles of the civil lawsuit system from a general perspective, based on the legislative and judicial practices of major countries in the civil law and common law systems, combined with the current reality of China, and proposes a macro-level vision for improving China's civil lawsuit system. This book is divided into four parts.
Part 1, The Basic Concepts of the Civil Lawsuit System. The concept of law is the value judgment of people on the legal system and the abstract value orientation of the rules it formulates. The legal system is the specific set of rules formulated based on the legal concept. The basic concept of the civil lawsuit system is: the right to sue in civil cases is a fundamental right of citizens, and the protection of the right to sue in civil cases is a fundamental obligation of the state towards citizens. As people's material and spiritual living standards improve, the substantive rights granted by law will increase, but 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 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 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 separated, meaning that those who enjoy the right to sue in civil cases may not necessarily enjoy substantive civil rights. China has not yet incorporated the right to judicial remedy as a fundamental right of citizens into 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 provision in the constitution that respects and protects human rights indicates that the mainstream consciousness in China has undergone a fundamental shift in concept, from the past emphasis on rights to the present emphasis on respecting and protecting rights, focusing on 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 written into the constitution.
Part 2, A 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 the underlying concepts and intentions of these provisions and seek experience that can beed by China's legislation and judiciary. The characteristics of France's civil lawsuit system can be summarized in two points: first, it 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 created a system of collective litigation qualifications. It provides another important channel for protecting the rights of individuals (members of guilds). The civil lawsuit system of Germany has the following three characteristics: first, it stipulates the defendant's duty to respond. That is, if the defendant does not submit a reply within the specified time, or submits a reply but does not effectively refute the facts raised by the plaintiff, it may have to bear 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 the procedure 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 the reasonable expectations of parties regarding 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 civil lawsuit system in the United Kingdom are as follows: first, it has a broad system of counterclaims and additional claims. The 20th chapter of the Civil Procedure Rules of the United Kingdom stipulates counterclaims and other additional claims, according to which the scope of litigation that can be initiated 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 scope of litigation costs in the United Kingdom is relatively broad. The litigation costs of the British court 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 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 established the 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 Lawsuit System. If we do not consider the specific legal traditions and current environment of our country and blindly transplant foreign systems and experiences, 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 mainly refers to the feudal society. In feudal China, Confucianism dominated the ideology. Confucianism pursued a goal of a harmonious world in governance, with the world belonging to all. In terms of concepts, it advocated non-litigation and shame in litigation. As a result, the mainstream society did not pay too much attention to or make many achievements in 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 imitated Japan and Germany's Civil Procedure Code and formulated 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 procedure system to judicial fairness. The 1911 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, which was founded in 1921, liberated large areas of rural China and 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 sat in judgment based on complaints and documents but went out of the office to adjudicate on the spot. 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 the judiciary in the liberated areas relied more on the ideology of communism and folk customs for mediation. This period, the people's judiciary focused more on maintaining social order, with a very 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 Code was not established until 1982. Although it was formally implemented after being amended in 1991, the code was still 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 nature of human beings, overly relying on people and neglecting systems; second, the study and attention to the right to sue are insufficient. The right to sue in civil cases is based on the right to sue as its theoretical foundation and logical starting point. If the right to sue is not valued, the concept and system of the right to sue in civil cases will lack a foundation; third, China is accustomed to replacing law with words and morality, and to some extent, the judiciary has not truly established the concept of law supremacy.
Part 4, 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 case acceptance, 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 results in parties being unable to fully and effectively utilize 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 acceptance should be expanded, meaning that the court 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 fundamental rights under the constitution; the conditions for filing a lawsuit should be lowered, meaning that as long as the formal requirements are met, the court should accept the lawsuit; regarding the acceptance fees of the court, the current charging standards should be reformed to make the basis for charging more reasonable and reduce the fees; in the system of consolidated litigation, it should be stipulated that the court must not refuse to merge lawsuits that can be merged; in addition, while protecting the right to sue, the abuse of the right to sue in civil cases should be regulated, and the punishment for frivolous lawsuits should be intensified, so that the rules for civil lawsuits can be gradually improved.