Procedure Law And Court Rules
罗伟
【关键词】Procedure law;Court rules
【全文】
Table of Contents
I.Legislative History
II.Distinctive Characteristics of Chinese Civil Procedure Law
1.Trial Independent Resting in Courts not Judges or Benches
2.Two Trials to Conclude a Case
3.Procuracies’Supervision of Civil Adjudication
4.Proactive Role of Chinese Judges
5.Mediation
6.Involvements of Litigants’Units (Employers)
7.Separated Set of Procedures for Maritime Litigation
III.Judicial Interpretations for the Civil Procedure Law
VI.Conclusion
This introduction briefly surveys the legislative history of Chinese civil procedure law and discusses some distinctive characteristics of the Chinese civil procedure law. This introduction will help readers understand the evolution of China’s civil procedure law, the different practices in Chinese civil proceedings, and how the Chinese civil procedure legislation is supplemented by the judicial interpretations.
I. Legislative History
Although, in ancient China,there were rich histories in codifying laws into statutes,there was no separate statute on civil procedure until 1910 when the Court of the late Qing Dynasty promulgated the Qing Imperial Code of Civil Procedure
.This law was formulated by imitating the Japanese Civil Procedure Law of 1890 under the supervision of Mr. Shen Jiaben
, the Commissioner of the Legal Reform Commission.Because the Japanese Civil Procedure Law of 1890 was modeled after the German Imperial Code of Civil Procedure of 1877,the Qing Imperial Code of Civil Procedure mirrors the basic legal characteristics of the civil law system. One year later in 1911, the Qing Dynasty was overthrown by a revolution, and the Republic of China was founded. Soon after the Republic of China was founded, China fell into civil war.The central government (was also called the Northern Government
) established in Peking (Beijing) was controlled by the northern warriors, while the more revolutionary factions led by the Nationalist Party established the Nationalist Government in Guangzhou in 1921. During this period of time, the Northern Government and the Notional Government promulgated their own versions of the civil procedure law respectively. In 1928 when the arm led by the Nationalist Party unified China, the Nationalist Government established its capital in Nanjing. In 1935, the Nationalist Government promulgated the Civil Procedure Law of the Republic of China.
In 1927 when Nationalist Government began to crack down the Chinese Communist Party (CCP),the CCP turned its revolutionary movement into underground.In November 1931, the CCP established the Chinese Soviet Republic with about a dozen revolutionary bases in some rural areas in China, mainly in the Jianxi Province. Between 1931 and 1937 when the CCP entered the united front with the Nationalist Government to fight against the Japanese aggression, to rule its territory and pursue the communist revolution, the Government of the Chinese Soviet Republic departed from the legal system established by the Nationalist Government and issued a series of decrees. Some of these decrees dealt with the issues of judicial procedures but there was no decree specialized in civil procedure.Between 1937 and 1949, the local governments in the areas under the CCP controlled basically followed the legal system established by the Nationalist Government but also developed the principle of “mediation first and trial second”
in the civil litigation.This principle still influences today’s Chinese civil litigation.
In February 1949,eight months before the People’s Republic of China (PRC) was founded, the Central Committee of the CCP issued the Order on the Abolition of Six Laws System of the Nationalist Party and Establishing the Judicial Principles in the Liberated Areas.This order abolished all the laws and the judicial system created by the Nationalist Government.It also instructed communist judicial institutions to handle matters according to the provisions of the programs, laws, orders, acts, or resolutions made by the CCP, and to apply the CCP’s policies when no such provisions existed. The principle of this order also was adopted in the Common Program which served as the interim constitution for the PRC from 1949 to 1954.
On September 15,1954, The First Plenary Meeting of the First National People’s Congress (NPC) was held in Beijing.On September 20, 1954, the first constitution of the PRC and the Organic Law of the National People’s Congress were enacted and promulgated. The next day, the NPC also enacted and promulgated the Organic Law of the State Council, the Organic Law of the People’s Courts, the Organic Law of the People’s Procuracies, and the Organic Law of Local People’s Congresses and Local People’s Committees at All Levels. Finally, these laws gave a legal basis to establish a governmental structure for the PRC based on the socialist ideology. In the 1950’s,the PRC tried to develop a legal system by imitating the former Soviet Union’s legal system.The PRC employed the socialist ideology created by Marx and Lenin, which stressed that law and the legal system represented the will of the ruling class in a class society, as they were instruments for the ruling class to oppress the governed class. Due to constant political movements and the Culture Revolution, there had not been many legislative creation and publication activities before 1978 when the PRC began its economic reform.
Although the government of the PRC ran the country without a civil procedure law until 1982, the Chinese courts relied on the civil procedure rules promulgated by the Supreme People’s Court (SPC).In October 1956, the SPC published the Summary of the Civil Case Adjudication Procedures of the People’s Courts at All Levels.Based on this summary, in 1957,the SPC formulated and promulgated the Adjudication Procedure of Civil Cases.In 1979, the SPC also promulgated a new set of civil procedure rules called the Provisional Regulations on the Procedure System for the People’s Courts to Adjudicate Civil Cases.
