Litigation procedure belongs to the public relief procedure in procedural legal procedure. Generally speaking, the litigation procedure can be interpreted as the sum of all the activities carried out by the judicial organs and the parties to the case in stages and in an orderly manner to solve the case with the cooperation of other litigation participants, and the resulting litigation relationship.
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Characteristics of rights
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The nature of litigation right
creditor's rights
Editing this paragraph has its own characteristics.
Litigation procedure includes two aspects: on the one hand, it is the stage and process of procedural activities, on the other hand, it is a litigation procedure.
The institutional arrangement embodies the relationship structure between the procedural subjects. There are broad sense and narrow sense in litigation procedure. Broadly speaking, litigation activities include not only trial, investigation and execution, but also litigation of the parties, so litigation procedures are correspondingly divided into trial procedures, investigation procedures, execution procedures and litigation procedures of the parties. In a narrow sense, litigation procedure only refers to the procedure of exercising judicial power and litigation right. Generally speaking, litigation must involve national judicial power, especially judicial power, so many scholars are used to calling litigation procedure trial procedure for short. It should be said that the word "trial procedure" reveals the essence of litigation procedure and puts judges in a dominant position. However, the result of this is to deny or obliterate the litigation status of the right subject, and to examine the litigation process on the basis of judicial power, thus causing the imbalance of the litigation procedure structure. It can be seen that the concept of trial procedure cannot be replaced by litigation procedure. In order to facilitate focused discussion, unless otherwise specified, this concept is narrow. Adjusting social relations in the form of litigation is the need for rulers to maintain their own political stability and economic order and solve social contradictions and conflicts. The scope of application of litigation procedure depends to a great extent on the harm of social contradictions and conflicts to the ruling order. The greater the harm, the more necessary it is to adopt litigation procedures to make adjustments. The litigation procedure is based on the national judicial power, which is the most powerful and final relief way to solve social contradictions and conflicts. According to the content of conflict resolution, litigation procedure can be subdivided into three categories: criminal procedure, administrative procedure and civil procedure. Criminal proceedings refer to the activities of national judicial organs to solve whether criminal suspects and defendants commit crimes and whether they should be subject to criminal punishment with the participation of the parties and other participants in the proceedings, and the resulting relationship. Because the purpose of criminal proceedings is to execute the penalty power of the state, although criminal proceedings also imply the protection of human rights, this is not the main purpose of criminal proceedings, so criminal proceedings are mostly manifested as procedures for exercising power. A complete criminal procedure usually includes filing, investigation, public prosecution, trial and execution. legal proceedings
Administrative litigation procedure is a legal procedure for the administrative counterpart to request the state judicial organ to cancel (remedy) the illegal administrative act of the administrative organ and infringe its rights. Administrative litigation has two purposes: one is to protect the rights of administrative counterparts, and the other is to judge the legality of administrative actions, of which the former has the same purpose as civil litigation. Civil litigation procedure refers to the legal procedure decided by the national judicial organs to solve disputes between natural persons, legal persons and other organizations and between them due to private law relations. The purpose of civil litigation is multiple: protecting private rights, resolving disputes, and maintaining the order of private law. This determines that the principles and rules of civil procedure have the widest applicability. In other words, among the three major litigation procedures, the civil litigation procedure occupies a more basic position. Take administrative litigation as an example. There are great similarities between administrative litigation and civil litigation. Some provisions in civil litigation procedures, such as withdrawal, evidence, time limit, service, first-instance procedure, second-instance procedure, trial supervision procedure and execution procedure, can be applied with reference to administrative litigation procedures. The litigation procedure is arranged according to the axis of dealing with specific disputes fairly and effectively afterwards and individually. Its main characteristics are: (1) normal. Litigation procedure is composed of a set of scientific procedural rules. The formulation of procedural rules summarizes the experience of long-term litigation practice, condenses the essence of human legal thought, embodies the law of litigation procedure itself, and has universal applicability to same-sex procedural behavior and subject relationship. (2) dialogue. The litigation procedure is not only static and standardized, but also dynamic and conversational. The so-called "dialogue", litigation procedure
It refers to the information exchange and communication between the subjects of litigation procedure. The dialogue between the subjects is divided into two directions: one is the horizontal dialogue between the parties (that is, rebuttal), and the other is the vertical dialogue between the court and the parties (that is, discussion). In order to ensure the rationality of dialogue, the design of litigation procedure should maintain the equality and competition between the parties, as well as the opposition and unity between the court and the parties. The parties persuade the judge to make a judgment in their favor through rebuttal, and on this basis, the judge convinces the parties, the higher court and the public through judgment reasons. (3) the certainty of program results. No matter what kind of trial level system is adopted, the litigation procedure ultimately points to a certain procedural result, that is, the court's judgment. Once a judgment is made or served, it is binding, decisive and res judicata. Without legal procedures, it shall not be changed or revoked at will.
Edit this litigation behavior
Litigation, also known as litigation activities, refers to the legal acts that judicial organs and litigants carry out in accordance with legal procedures and can produce litigation effects. Including the filing, investigation, prosecution, detention, arrest and trial of criminal cases by judicial organs; Acceptance, investigation, evidence collection and mediation of civil cases, as well as prosecution, response, proof, debate or defense of the parties. In addition to the conditions of general legal acts, litigation acts must also meet the conditions stipulated in the procedural law. That is, the case must be under the jurisdiction of the judicial organs; The parties must have the qualifications of the parties, and the criminal must have the capacity for criminal responsibility, both of which have the capacity for litigation (the person without the capacity for litigation is represented by his agent ad litem according to law); A case shall not be determined by a court judgment (a case whose judgment or ruling has taken legal effect shall be handled in accordance with the procedure of trial supervision); If the complaint is handled, it must be informed by the victim. , and civil litigation must be filed by the parties. As the civil procedure occupies the basic position in the three major litigation procedures, the following is devoted to the civil litigation behavior and its adjustment method. legal proceedings
Civil litigation acts are all kinds of litigation activities carried out by the people's courts and litigants in civil litigation procedures. From the prosecution of the parties to the judgment of the people's court, the whole civil litigation process is completed by the orderly litigation behavior of the litigants. It can be said that civil litigation constitutes the unit of the whole litigation process. Without the chain of litigation behavior, the civil litigation procedure cannot continue. At the same time, litigation itself is the power source of litigation procedure. This is manifested in: on the one hand, civil litigation follows the principle of non-prosecution and disregard, so prosecution is the fundamental driving force of the whole litigation procedure; On the other hand, the former litigation behavior makes the latter litigation behavior necessary and possible, and the ultimate goal of litigation activities is to make the court make a final judgment. In the history of the development of civil litigation theory, German scholars once regarded civil litigation as the sum of a series of litigation actions, which has long occupied a dominant position in history. However, with the establishment of the theory of legal relationship in civil litigation, the view that "civil litigation procedure is the sum of litigation actions" has been criticized and challenged. Especially in the former Soviet Union, all kinds of orthodox textbooks regard the theory of legal relationship of civil procedure as the logical starting point of civil procedure law, but scholars pay little attention to litigation behavior. It is true that the view that civil litigation is only regarded as the sum of litigation activities cuts off the overall connection of civil litigation activities, and the theory of litigation legal relationship unifies the subject of civil litigation (other participants in litigation will not be considered for the time being), the object of litigation and the rights and obligations of litigation for the first time. But we should also see that. Neither scholars in the former Soviet Union nor scholars in China's civil procedure law have paid enough attention to litigation rights and obligations. The externalized form of litigation rights and obligations is litigation behavior, such as prosecution, responding and appeal of the parties, evidence investigation, litigation command, service and judgment of the court. Are there * * * similarities between these lawsuits? How to adjust scientifically in civil procedure law. Solving the above problems in theory will undoubtedly help us to further understand the general law of adjusting civil procedure. legal proceedings
Starting from the premise that civil litigation takes place in the course of litigation and is thus adjusted by the civil procedure law, we can put aside the factual composition of substantive rights and obligations outside the litigation procedure and directly bring the legal relationship of civil litigation into our research field of vision. Many scholars of continental law point out that all civil acts can be divided into two parts, one of which can be directly stipulated by the legal way of litigation rights and obligations, and the legal facts required by legal norms can be directly transformed into subjective rights and obligations, occupying an absolute advantage in quantity; The other part of litigation behavior cannot be stipulated by the legal way of litigation rights and obligations, and the content of subjective rights and obligations cannot be determined unless the parties have a clear intention. Of course, this kind of litigation behavior is very few in number, and only two kinds of consensual jurisdiction and litigation settlement can be found in our civil procedure law. Objective legal norms are directly realized as litigation rights, that is, litigation legal relations. This method of legal adjustment is called legal adjustment in jurisprudence. It is absolutely necessary to adhere to the method of legal adjustment in civil litigation.
Edit the correct characteristics of this paragraph.
First of all, civil litigation rights and obligations generally have the characteristics of generality and universality. The litigation rights and obligations obtained by different subjects according to law are only different in quantity, not in quality. Objective legal norms can satisfy and cover the demands of different subjects in similar litigation. Secondly. An important feature of civil litigation behavior different from civil legal behavior is that in civil litigation, in principle, it should exclude the doctrine of will and exclude the expressionism, so the litigation behavior of the parties has nothing to do with the expression of the real intention of the actor in principle. According to the theory of expressionism, the effectiveness of civil litigation behavior is based on the objective effect of the behavior at that time, rather than exploring the real meaning of the actor. Therefore, even if the actor's true meaning is inconsistent with his expression, the determination of effectiveness should be based on his objective expression. Expressionism (or objectivism) is consistent with legalism in many cases. Legalists determined the specific types of civil litigation behavior by summarizing the contents of litigation rights and obligations and abstracting and summarizing the objective legal facts, and also solved the specific scope and effective time of litigation rights. legal proceedings
Thirdly, in civil litigation, the subject of litigation legal relationship is directly related to objective legal facts, so. The adjustment of legalism can concretize the subject of litigation rights and obligations. It is generally believed that the legal relationship in civil litigation is a two-sided relationship, and any litigation behavior is the behavior of the court, not the behavior of the other party. Both the litigant and other litigants are based on specific objective legal facts, and the legal evaluation of these objective facts is independent of the will of the parties. Judging from the practice of modern civil procedure law, the subject of most litigation legal relations is directly determined by the legal norms of civil procedure. In the process of defining the subject of legal relationship in such litigation, the law does not consider the will or expression of will of a single party, but only focuses on whether it constitutes an objective legal fact. For example, the fact that the parties sue is enough to concretize the plaintiff's position. According to the principle of not prosecuting and ignoring, and the legal proverb of "no plaintiff can be an official", once a party files a lawsuit, its plaintiff qualification is designated for prosecution, and it doesn't matter whether it belongs to a legal plaintiff. Finally, the object of litigation rights and obligations can be stipulated by legalism. Specific object is the basic element that constitutes a specific litigation legal relationship, and there is no object or object uncertainty. There is no question of litigation legal relationship. In order to clarify the specific scope of litigation rights and obligations, the civil procedure law must summarize the unified object content from objective legal facts, which has been unanimously recognized in China's civil procedure law. Generally speaking, due to the different subjects of litigation legal relations, the objects (that is, objects) that litigation rights and obligations point to are not the same. As far as the people's court and the parties are concerned, the objects of their litigation rights and obligations are the facts of the case and the substantive creditor's rights; As far as people's courts, witnesses, experts and translators are concerned, the object of their litigation rights and obligations is the objective facts of the case. In other words, the object of litigation rights and obligations can be summarized as the facts of the case and the substantive legal relationship, which provides a theoretical premise for the legal adjustment of civil litigation. To sum up, we can draw the following conclusions: first, the adjustment mode of legalism is the general law of adjusting civil litigation behavior. According to the requirements of Legalism, the establishment and effective elements of any civil litigation act should be clearly and uniformly stipulated by the Civil Procedure Law, and whether it is established should follow the objectivism (objectivism), not the objectivism. In fact, the civil procedure law has played its abstract and generalized function to the maximum extent, and almost all litigation acts with universal content have been brought into the legal adjustment track. It is precisely because of the legalization of procedural activities and procedural rules that civil procedures are endowed with the function of regulating and adjusting. In this sense, China's civil procedure law is not too complicated, but too concise, which can not fully meet the requirements of statutory adjustment. Second, we do not deny that it is outside the scope of statutory adjustment. There are also areas where both parties make self-adjustment according to their own agreements, such as consensual jurisdiction and consensual termination of litigation. However, compared with the adjustment scope of legalism, this field is much smaller, limited to several forms clearly stipulated in the civil procedure law, and because China's civil procedure law does not recognize the existence of litigation legal relationship between the parties. Therefore, the Civil Procedure Law has extremely strict regulations on this kind of litigation legal act that can directly produce litigation effect, and its role is limited to the supplement of statutory adjustment methods.
Edit the main structure of this paragraph.
Another meaning of litigation procedure is the relationship arrangement between subjects, that is, the subject structure of procedure, which is also called litigation legal relationship in theory. Litigation procedure involves two different subject structures: one is the relationship between judicial power and litigation rights, and the other is the relationship between litigation rights. Because the litigation procedure is a typical power procedure, the litigation right of the right subject and the judicial power of the right subject constitute the basic contradiction of the litigation procedure. The theory of litigation right (or litigation right) has a long history in civil litigation law, and there have been theoretical theories such as private litigation right, abstract litigation right, specific litigation right, jurisdiction of this case, dynamic litigation right inside and outside litigation, and denial of litigation right. /kloc-before the 0/9th century, public law was underdeveloped, and the theory of private litigation right (that is, the theory of private litigation right) dominated. According to this theory, the right of action is a special right after every substantive right is violated, and it is an integral part of substantive rights, which is realized in litigation. The defect of the theory of private litigation right is that the court is required to find out whether the plaintiff has substantive rights before accepting the case, otherwise it will not be accepted, which makes substantive rights a prerequisite for the exercise of litigation right, thus fundamentally reversing the time sequence relationship between the exercise of litigation right and the determination of substantive rights. Marx sharply criticized this. He said: "It should be considered that legislation that does not recognize the right of private individuals to prosecute their own private cases violates the minimum basic principles of civil society. In this way, the right to appeal has changed from a natural independent private right to a privilege granted by the state through judges. " /kloc-In the second half of the 9th century, with the rise of the concept of public rights, the right of action evolved from the initial private right to the right of the state in public law, and the abstract right of action (as opposed to the denial of the right of action), the specific right of action (that is, the right to protect rights), the jurisdiction of this case, the dynamic right of action in litigation and the judicial right of action appeared one after another. All the above theories hold that the right of action is a pure procedural right and a pure public law right, and the right of action is not the right of the defendant, but the right of the national judicial organ; The right of action is not attached to civil rights, but independent of civil rights. What further develops the concept of the right of action is the dual right of action theory of the former Soviet Union. According to this theory, the right of action is a term that expresses many different concepts: first, it refers to the right of action in the procedural sense, that is, the right to sue, which is the right of the parties to request judicial protection from the court; Second, the litigation right in the substantive sense refers to the civil rights of the subject in the state of being able to enforce the obligor. The theory of double right of action clarifies the double meaning of the concept of right of action for the first time, and avoids the possibility of confusing different concepts of right of action. However, the theory of dual litigation right also has defects, that is, the ambiguity of the word litigation right is not conducive to the correct application of the law, so it is necessary to re-understand the concept of litigation right.
Edit the nature of the right of action in this paragraph
Generally speaking, the right of action in our country refers to the basic right given by law to the subject of civil legal relationship to file a lawsuit when his rights and interests are infringed or disputes arise. The right of action runs through the whole process of litigation and becomes the basis of litigation; Moreover, the right of action shows different litigation rights in different stages of litigation procedures. The author basically agrees with the general view. It is believed that the right of action is not a term to express different concepts, and the concept of right of action in civil law is definite and unified. The right of action refers to the right of the parties to request the people's court to exercise judicial power to protect their civil rights and interests. The nature and characteristics of the right of action can be summarized as follows: First, the right of action is both a procedural right and a substantive right. The right of action has both procedural and substantive provisions, including both procedural and substantive elements. From the perspective of substantive rights, the right of action is the right of claim, that is, the right of the parties to request the court to enforce their legitimate rights and interests through trial, which is the content of the right of action. From the perspective of procedural rights, the right of action is the right of prosecution, that is, the right to ask the court for judicial protection when the legitimate rights and interests of the parties are violated or disputes arise. The substantive nature of the right of action reflects the possibility of the realization of the right of action, and the procedural nature reflects the reality of the realization of the right of action. We recognize the duality of the nature of the right of action, which reflects our attitude of protecting the right of action, that is, whether the plaintiff's substantive rights exist or not, the people's court should accept his lawsuit, thus realizing the unity of reality and possibility of the right of action. Second, the right of action is not only an abstract right, but also a specific right enjoyed by the parties. It is abstract because the right of action itself is a theoretical summary of various legal phenomena involved; It is specific because the right of action has its own elements. Whether the parties have the right of appeal depends on whether they have the elements of the right of appeal, and nothing else. The significance of the unity of the abstraction and concreteness of the right of action lies in that the abstraction of the right of action is different from the right of action, and the concreteness of the right of action is different from the ability of the right of action. Denying the above characteristics of the right of action is equivalent to denying the concept of the right of action itself. Third, the right of action is both an objective right and a subjective right. The objectivity of the right of action is embodied in the fact that the right of action is endowed by the Constitution, the Organization Law of the People's Law and the laws of civil law, economic law and civil procedure law. When the rights of the obligee are infringed or there is a dispute, the right to appeal arises and exists, and no unit or individual (including the people's court) has the right to deprive the obligee of the right to appeal at will. The subjectivity of the right of action is reflected in the fact that the right of action is claimed by the parties, and it is impossible and unnecessary for the people's court to protect the civil substantive rights that are not claimed. In fact, the development of the theory of litigation elements in civil litigation is determined by the subjectivity of litigation right. The significance of distinguishing the objectivity and subjectivity of the right of action lies in that the important task of the people's court is to protect the right holder who really enjoys the right of action (of course, at the same time, it should also protect the procedural interests of the parties) and prevent the abuse of the right of action. Fourth, the right of action is the right to use it from outside the lawsuit. In the past, many theories of the right of action, such as abstract right of action, concrete right of action, concrete right of action and request for judgment in this case, separated the concept of the right of action from the actual litigation procedure, and thought that the right of action was a right existing outside the litigation, a state after the emergence of civil rights disputes, and a driving force for the operation of the litigation system. However, this does not mean that the right of action cannot enter the actual litigation procedure, nor does it mean that the right of action is denied from beginning to end to carry out litigation-the right of action is still the right that constitutes the basis of civil litigation procedure.
Edit the litigation right of this paragraph
Corresponding to the litigation right (litigation right) is the judicial power of the power subject. Judicial power is the collective name of judicial power and judicial power, which is exclusive to the court and an exclusive power, that is, other organs are not allowed to exercise this power except the court. Judicial power is the last resort to resolve conflicts. All kinds of social contradictions are finally submitted to the court for adjudication in the form of criminal, civil and administrative litigation. The court will resolve disputes, conflicts and ensure the implementation of national laws through court hearings and rulings. Judicial power is peaceful and non-self-help, and it is passive or responsive in terms of initiation, multi-participation, centralization, finality and authority of adjudication. The author believes that the most important feature of judicial power is passivity. The passivity of judicial power is manifested in procedural law as non-prosecution and disregard of principles. Accordingly, the initiation, operation and termination of the proceedings should be decided by the parties. If the facts are not claimed by the parties, the court will not recognize them, and the court must make a ruling within the scope claimed by the parties. It can be seen that the passivity of judicial power means that judicial power is restricted by litigation right, which is consistent with the relationship structure between litigation right and judicial power. The relationship structure between litigation right and judicial power has always been a problem to be solved by the theory of litigation legal relationship. The focus of the theory of litigation legal relationship is to understand litigation procedure as the relationship between litigation rights and obligations between procedural subjects. However, there are different views on the nature of litigation rights and obligations in theoretical circles, which leads to three theories: one-sided relationship theory, two-sided relationship theory and three-sided relationship theory. Among them, the one-sided theory holds that the legal relationship of litigation is the relationship between plaintiff and defendant, and the judge only plays the role of arbitrator; The theory of double-sided relationship holds that the litigation legal relationship is public law, and there is no direct litigation relationship between the plaintiff and the defendant, but only between the court and the plaintiff or the defendant. Trilateral relationship theory advocates the formation of litigation legal relationship between the court and the parties and between the parties. To clarify the nature of litigation legal relationship, we must first clarify the meaning, elements and structure of litigation conceptually. Civil litigation is essentially an activity in which the parties use "public rights" to protect "private rights". Only when the parties file a lawsuit and ask the court to start the trial procedure can the request made by the parties to the court be called a "lawsuit". Litigation mainly belongs to the concept of procedural law and should only occur between the parties and the court. In this sense, it can be considered that the legal relationship of civil litigation is two-sided.