Civil Procedure Law Colloquium, Volume 10

Author: Chen Guangzhong, Jiang Wei
Publisher:
Publishing Time: Not available
Features: A heavy snowfall covered Beijing. In the cold weather, a new volume of "Essays on the Theory of Procedure Law" was compiled. As an editor, seeing the carefully selected articles arranged in order, it felt like old friends and new acquaintances gathered together to discuss academic issues in procedural law, bringing a warm sense of comfort to the heart. The Criminal Procedure Law section includes 14 articles. These articles reflect the rational thinking of procedural law scholars on judicial reform, procedural theory, and systems from multiple perspectives. Many of the articles have novel themes and perspectives, offering insightful reading. This section still maintains traditional columns such as theoretical research, practical research, evidence law research, and foreign law.
In the theoretical research column, we have included Huang Songyou, Vice President of the Supreme People's Court, "Improving the Procedural System and Promoting Judicial Reform," which is an excerpt from his speech at the 2004 annual conference of the Procedural Law Society. Huang has extensive experience in judicial adjudication and has long been thoughtful about procedural systems and judicial reform. In the article, he proposes suggestions for improving China's (simplified procedures) based on the current judicial situation, believing that "simplified procedures should not only apply to light criminal cases with sentences of three years or less but also to cases with heavier sentences." He also proposes improvements for the detention system, advocating for a system where bail is the primary measure and detention is secondary. He expresses admiration for the practice of some countries not stipulating trial deadlines in procedural law and suggests learning from foreign experiences to establish a pretrial system. The article also proposes his own suggestions on witness testimony systems, evidence presentation systems, death penalty review procedures, and trial supervision procedures. These views are worthy of attention from the legislative, judicial, and academic communities.
Dr. He Chaoming, Prosecutor General of the Macau Special Administrative Region, wrote "The Status and Value Orientation of Prosecutorial Power in Criminal Procedure," which was submitted at the International Symposium on "Challenges in the 21st Century" held in Macau in December 2004. The author introduces the Macau prosecutorial system, the status and value orientation of prosecutorial power, and elaborates on his personal views, providing a good window for understanding Macau's relevant systems.
The warrant system constitutes an important part of modern criminal procedure systems and is worth in-depth and systematic research. Song Shijie and Chen Zhimin's "On the Warrant System" offers a valuable attempt to discuss the procedures for applying for and issuing warrants, with their theoretical analysis being relatively reasonable. Wang Haiyan and Zhang Xiaoling's "On the Relevance Rule and Relevance Principle of Evidence" conduct an in-depth analysis of the relevance rule, a core evidence rule adopted by major countries worldwide. From a comparative law perspective, they distinguish between the relevance rule and relevance principle and ultimately propose unique insights on how China can establish its own relevance rule.
In the practical research column, we have included "A Survey Report on Criminal Legal Aid in Some Parts of Yunnan Province" written by the Research Team of the Criminal Legal Aid Department of the Ministry of Justice. The research team conducted a 10-day investigation on criminal legal aid issues in Kunming, Xishuangbanna, Lijiang, and Dali Bai Autonomous Prefecture in Yunnan Province. This report is the result of that research. The report summarizes funding guarantees, the functional positioning of legal aid institutions, the handling of criminal cases, the implementation procedures of legal aid, the economic subsidies for legal aid lawyers, and the quality of defense. The provided data and typical cases are highly valuable, and the issues raised and suggestions made are worth attention.
Nie Zhaowei's article in this column discusses the conciliation system for parties in light injury cases, based on the recent "Opinions on Several Issues of Applicable Law in Handling Light Injury Criminal Cases" issued by the Higher People's Court of Zhejiang Province, which stipulates the conciliation system for public prosecution cases. The article proposes the establishment of a criminal conciliation system, a topic with considerable novelty. However, the article does not directly explore how the principle of party autonomy can be applied in public prosecution cases and deliberately avoids certain content in the opinions that contradicts the current Criminal Procedure Law, which is a shortcoming.
In the evidence law research column, we have included "Fact and Truth in Procedural Proof" by Li Yuhua and "Preliminary Exploration of the Rule of Judicial Knowledge" by Zheng Weimi. The former analyzes the contentious issue of fact and truth in procedural proof, while the latter explores the rule of judicial knowledge, both offering insightful perspectives and worth reading.
The foreign law column includes three articles. Zhang Zhong's "Analyzing 'Double Jeopardy'—A Perspective Based on the Historical Evolution of the U.S. Rule Against Double Jeopardy" is a well-crafted piece. The article traces the origin and development of the "double jeopardy" system, with accurate data and well-supported arguments, making it a good paper for interpreting the "double jeopardy" rule. Huang Bin and Li Huidong's "The Access to Justice Act of 1999" reviews the reform of legal aid in the UK and its implications for China's legal aid system, offering some reference value. The term "access to justice" is increasingly popular in procedural law research in China, but translating "access to" directly as "" (approximate) may not be ideal, as "access to" also means "to obtain." Zhang Shu's "Changes and Analysis of the French Preliminary Examination System" provides a clear overview of the development of the French preliminary examination system, explores its underlying reasons for development, and analyzes the characteristics of modern criminal pretrial procedures in the context of the French system.
In the doctoral dissertation highlights section, we have included Chen Yingxin's "Reflections on the Rationality of China's Criminal Procedure Law." Procedural philosophy is a major topic in procedural law, and this paper reflects on procedural philosophy, proposing several standards for the rationality of criminal procedure law. Based on these standards, it conducts a comparative and detailed analysis of the rational and irrational aspects of China's current criminal procedure law.
The Civil Procedure Law and Administrative Procedure Law section includes 12 academic papers. In the theoretical research part, Tong Zhaohong and Zhang Qingshan's "Bankruptcy and Enforcement: Functional Positioning and Institutional Coordination" clarifies the mechanisms of bankruptcy and enforcement as debt realization systems. Through institutional design, it aims to harmonize their operation and coordination, thereby promoting the construction of a social credit system and the stability of the market economy order.
Regarding judicial clarification, people often associate it with civil law systems. Xie Wenzhe's "Legislative Reforms and Inspiration of Judicial Clarification—A Study Centered on Germany and the United States" provides a detailed argument for the value of the clarification system in common law systems and constructs China's clarification system with the relationship between party autonomy and judicial authority as the core. Han Bo's "Paradox Resolution: The Disclosure of Evidence System in Adversarial Proceedings" argues that the disclosure of evidence system itself contains elements that deconstruct adversarial proceedings. To resolve this paradox, the author proposes unique insights from legal culture, procedural improvement, and the redistribution of responsibilities among procedural subjects.
In the legislative and practical research part, Liu Yaling's "Judicial ADR and the Construction of Non-Litigation Dispute Resolution Mechanisms in Chinese Courts" discusses the value of judicial ADR, which has been widely rising worldwide, for China's realization of diversified dispute resolution mechanisms. Feng Renqiang's "Interpretation and Reconstruction—On Improving the Civil Appeal Procedure" analyzes the theoretical disputes and conflicts of interest between procuratorial law in the current civil appeal system with a calm tone. Through institutional design, it explores how to construct a civil appeal procedure with Chinese characteristics. Xu Jijun's "Dynamic Changes in the Reform of Expert Witness Liability Systems Abroad and Their Implications for China" clarifies that China should establish and improve the liability mechanisms for experts and expert assistants under the principle of truthfulness.
Arbitration is different from litigation in terms of fact-finding and legal judgment. Wang Zuxing's "Reflections on Several Issues in Improving China's Arbitration Evidence System—With Reference to the Civil Procedure Evidence System" examines the special formal and substantive rules of arbitration evidence from static and dynamic perspectives. It proposes solutions to issues such as unclear legal positioning, incomplete provisions, lack of authorization for arbitration tribunals, and unclear burden of proof allocation in China's arbitration evidence system. Yu Haisheng's "Exploration of the Theory of Res judicata in Assignment Proceedings" makes a valuable exploration of this important basic theory in procedural law.
In the foreign-related civil procedure section, we have included He Qisheng's "Domain Electronic Service and the Hague Service Convention." The author presents relevant legislation and judicial practices of domain electronic service in various countries, as well as the persistent efforts of the Hague Conference on Private International Law, analyzing the feasibility of electronic service.
In the foreign law section, Zhu Hongwen and Wang Jian's "The Application and Legal Practice of Expert Determination in Commercial Dispute Resolution in the UK" elaborates in detail on the economic and efficient commercial dispute resolution method of expert determination, including judicial intervention, the execution of expert decisions, and expert liability, and discusses its rational application in China.
In the administrative procedure law research section, Zhao Qinglin and Liu Yiqi's "Research on Administrative Contract Litigation—With Discussion on the Modern Transformation of China's Administrative Procedure Law" argues that traditional administrative procedure law is not suitable for resolving administrative contract disputes. Retaining the concept of administrative acts and constructing a separate administrative contract litigation mechanism in China, while structurally reforming the current administrative procedure law system, is a feasible solution.
In the doctoral dissertation highlights section, Xiong Yaomin's "Reform of China's Civil Procedure Preparation Procedure: Models and Analysis" strictly defines the meaning of the preparation procedure and clarifies that the justification for the preparation procedure lies in the rationality of trial and the concentration of trial. It also analyzes several reform attempts regarding the preparation procedure in China and proposes suggestions on the subject, tasks, and positioning for constructing China's preparation procedure.