Impeachment (also known as accusation) litigation mainly appeared in the slave society period, which can be said to be the origin of "adversary system"
Litigant litigation mode is a litigation mode in which both the accused and the defendant play a leading role in the litigation process. The adversarial litigation mode plays a leading role in standardizing the litigation procedures of both parties, emphasizing confrontation between the parties through judicial competition.
Its main features are:
1. Implement the system of private notification;
2. In litigation, the litigation status of the original defendant is equal in form;
3. Judges are basically in a passive position in litigation and debate;
4. Judicial and administrative integration, and the degree of litigation specialization is not high.
The inquisitorial litigation form is a typical form of criminal litigation in feudal society, which can be said to be the origin of authoritarianism.
The ex officio litigation mode refers to a litigation mode in which the judge is in the dominant position, the prosecution and the defense are in the subordinate position, the judge can take the initiative to investigate and collect evidence according to the authority, the judgment is not limited to the request of the parties, the prosecution mode is mainly public prosecution, supplemented by private prosecution, the investigation plays an important role in the litigation, and the relief procedure is relatively perfect. Its main features are:
1. The judicial organs actively investigate and deal with crimes according to their functions and powers;
2. Pursuing the importance of confession and extorting a confession by torture from the defendant, who is the object of investigation, that is, the subject of litigation rather than the subject enjoying the right of defense;
3. The judge's jurisdiction is not restricted, and the case can be tried indirectly.
Extended data:
At present, China adopts authoritarianism:
The main characteristics of ex officio litigation mode;
1, the judge dominates the trial process.
First, the judge should participate in the discovery and determination of the facts of the case from beginning to end, and should actually direct and control the whole litigation process, which is dominated by the judge rather than the parties. We can simply find the difference between the two legal systems from the litigation procedure in Germany. Germany does not adopt the jury system, but adopts the way that jurors and judges sit together and the judge leads the trial. After the plaintiff files a lawsuit, the defendant will reply, and both parties will produce relevant evidence, and then the judge will decide the time and content of the trial.
After the trial begins, it is usually not the parties but the judge who explains the case. The judge shall explain the legal and factual issues involved in the case to the parties and listen to the feedback from the parties and their lawyers. After the case is explained, the trial enters the stage of proof, which is called evidence investigation procedure in Germany. This process is usually regarded as a process in which a judge collects information to form an evaluation certificate in order to judge the disputed facts of a case and the application of the law.
In the process of summoning witnesses, the judge may ask the witnesses to elaborate on those issues, while other issues need not be mentioned, and issues that the judge thinks are not controversial may not be included in the scope of evidence investigation. A judge can also hire a witness to investigate without considering the evidence provided by the parties, and the judge has the right to ask questions to the parties and witnesses at any time. During the trial, the judge shall order the parties to make full and appropriate statements on all the important facts of the case. When the relevant statements are insufficient, the judge shall order the parties to make supplementary statements. After the court investigation or evidence-giving activities are over, the judge shall discuss the case and disputes with the parties and try to urge the parties to reach a settlement.
2. Restrict the disposition right of the parties.
Second, the judge enjoys great power in organizing, controlling litigation, investigating and collecting evidence, and the right to punish the parties is limited to some extent. Some scholars have pointed out that authoritarianism actually realizes the state's control over litigation through its agent, namely the judge [xiv]. A judge can not only collect evidence on his own initiative, but also make a judgment based on the judge's own evidence without considering the evidence and defense of the parties.
Judges also have the right to employ witnesses ex officio. In the process of trial, in order to make the investigation of facts more in-depth and concentrated, the judge should not simply passively listen to the opinions of both parties, but should actively ask one party according to his own trial plan, so as to avoid the delay and procrastination of litigation.
Although lawyers also play an important role in ex officio mode, they are obviously not as important as lawyers in adversary mode. The judge has full power to deal with every link and problem in the trial process, and it is entirely up to the judge to decide whether to investigate or not. Trial activities usually take the form of meetings under the auspices of judges, who can easily talk with both sides to promote reconciliation as much as possible. In order to promote reconciliation between the parties, the judge may also talk with one party. ?
3. A judge may collect evidence on his own initiative.
Third, judges can take the initiative to collect evidence ex officio. Under the ex officio mode, the parties can present some evidence and clues for the court to investigate, but the judge can investigate independently as needed. Judges, not lawyers, are the real judges and inspectors of evidence. After the trial, the judge shall briefly summarize and summarize the evidence. If the judge thinks that the evidence is insufficient, he can ask the parties to continue to provide evidence, and the judge can also investigate and collect evidence on his own. Experts are usually hired by the court and are called judges' assistants. The requirements for experts must be neutral [xv].
Of course, according to Article 104 of the German Civil Procedure Law, a judge can hire an expert upon the nomination of one party. If one party is firmly opposed to someone testifying as an expert, the judge can also hire another expert.