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 organ and the parties to the case in stages and in a coherent sequence to solve the case with the cooperation of other litigation participants, and the resulting litigation relationship.

contents

features

litigation behavior

features of rights

main structure

nature of litigation

litigation rights

editing this paragraph has features

litigation procedure contains two aspects: on the one hand, it is the stage and process of procedural activities; on the other hand, it is an arrangement related to litigation procedure

, which embodies the main body of the procedure. There are broad sense and narrow sense in litigation procedure. In a broad sense, litigation activities include not only trial, investigation, 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 is bound to involve the judicial power of the state, especially the judicial power, so many scholars are used to calling litigation procedure trial procedure for short. It should be said that the term "trial procedure" reveals the essence of the litigation procedure and puts the judge in the leading position. However, the result of this is to deny or obliterate the litigation status of the right subject, and to examine the litigation process based on the trial 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 the concentration of discussion, this concept is used in a narrow sense unless otherwise specified. Adjusting social relations in the form of litigation procedure is the need for rulers to maintain their 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 procedure to adjust. The litigation procedure is based on the judicial power of the country, and it is the most powerful and final relief way to solve social contradictions and conflicts. According to the content of conflict resolution, the litigation procedure can be subdivided into three categories: criminal procedure, administrative procedure and civil procedure. Criminal procedure refers to the activities of national judicial organs to solve whether a criminal suspect or defendant commits a crime and whether he should be punished by criminal punishment with the participation of the parties and other participants in the proceedings, and the relationship arising therefrom. Because the purpose of criminal proceedings is to implement the state penalty power, 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 the procedures for exercising power. A complete criminal procedure usually includes the stages of filing, investigation, public prosecution, trial and execution. Litigation procedure

Administrative litigation procedure is a legal procedure for the administrative counterpart to request the national judicial organ to cancel (remedy) the illegal administrative act of the administrative organ and infringe on 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 purpose is the same as civil litigation. Civil litigation procedure refers to the legal procedure that is judged by the national judicial organ 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, maintaining the order of private law, etc., which determines that the principles and rules of civil litigation 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 proceedings as an example. There are great similarities between administrative litigation and civil litigation, and some provisions in civil litigation procedures, such as withdrawal, evidence, period, service, first-instance procedure, second-instance procedure, trial supervision procedure and execution procedure, can be applied by reference to administrative litigation procedures. The litigation procedure is "arranged according to the axis of fair and effective handling of specific disputes afterwards and individually". Its main features are: (1) Normality. Litigation procedure is composed of a set of scientific procedural rules, and the formulation of procedural rules summarizes the experience of long-term litigation practice, condenses the essence of human legal thought, and reflects the law of litigation procedure itself, which has universal applicability to the same-sex procedural behavior and subject relationship. (2) Dialogue. The litigation procedure is not only static and normative, but also dynamic and dialogic. The so-called "dialogue", litigation procedure

refers to the information exchange and communication between the subjects of litigation procedure. The dialogue between the subjects is carried out in two directions: one is the horizontal dialogue between the parties (that is, refutation), 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 litigation procedure should be designed to maintain the equality and competitiveness of the status between the parties, as well as the opposition and unity between the court and the parties. The parties convince the judge to make a judgment in their own favor through refutation, and the judge convinces the parties, the higher court and the public through judgment reasons on this basis. (3) the certainty of program results. No matter what kind of trial level system is adopted, the litigation procedure finally points to a certain procedural result, which is the judgment of the court. Once the judgment is made or served, it is binding, definitive and res judicata. Without legal procedures, it shall not be arbitrarily changed or revoked.

editing litigation in this paragraph

litigation, also known as litigation activities, refers to legal acts conducted by judicial organs and litigants according to legal procedures, which 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, evidence provision, 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 capacity of parties, the criminal actor must have the capacity of criminal responsibility, and both have the capacity of litigation (the person without litigation capacity shall be conducted by his agent ad litem according to law); The case must not be determined by a court judgment (cases in which the judgment or ruling has taken effect shall be handled according to the procedure of trial supervision); If the complaint is dealt with, it must be told by the victim, etc., and the civil lawsuit must be filed by the parties. Because the civil procedure occupies a basic position in the three major litigation procedures, the following is devoted to the civil litigation behavior and its adjustment law. Litigation procedure

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 action 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 motivation for 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 activity is to make the court make a final judgment. In the history of the development of civil procedure theory, German scholars once regarded civil procedure as the sum of a series of litigation actions, and this view 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 little attention is paid to litigation behavior by scholars. It is true that the view that civil litigation is only regarded as the sum of litigation actions cuts off the overall connection of civil litigation activities, while the theory of litigation legal relationship unifies the subject of civil litigation (other participants in litigation will not consider it for the time being), the object of litigation and the rights and obligations of litigation for the first time. But it should also be noted that. Neither scholars in the former Soviet Union nor scholars in China's civil procedure law paid enough attention to litigation rights and obligations. The externalized form of litigation rights and obligations is litigation behavior, such as the prosecution, response and appeal of the parties, the evidence investigation, litigation command, service and judgment of the court, etc. Are there * * * similarities between these litigation behaviors? How to adjust it scientifically in the civil procedure law? Solving the above problems theoretically will undoubtedly help us to further understand the general law of adjusting civil litigation procedures. Litigation procedure

Starting from the premise that civil litigation takes place in the course of litigation procedure and is thus regulated 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 have pointed out that all civil actions can be divided into two parts, some of which can be directly stipulated by the legal way of litigation rights and obligations, and directly transformed into subjective rights and obligations according to the legal facts required by legal norms, which occupies 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 express their will. Of course, this kind of litigation behavior is very small in quantity, and only two kinds of consensual jurisdiction and litigation settlement can be found in China's civil procedure code. The objective legal norms are directly realized as litigation rights, that is, litigation legal relations. This method of legal adjustment is called legalistic adjustment in jurisprudence. It is absolutely necessary to adhere to the legal adjustment method in civil litigation.

editing the characteristics of rights in this paragraph

First of all, civil litigation rights and obligations are generally characterized by generality and universality. The litigation rights and obligations obtained by different subjects according to law are only different in quantity, but not in quality. The objective legal norms can meet and cover the claims of different subjects in similar litigation behaviors. 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, but from the doctrine of expression, 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, his objective expression shall prevail in the determination of validity. Expressionism (or objectivism) is consistent with legalism in many cases. By summarizing the content of litigation rights and obligations and abstracting and generalizing the objective legal facts, the legalism makes the specific civil litigation behavior type, and also solves the specific scope and effective time of litigation rights. Litigation procedure

Thirdly, in civil litigation, the subjects of litigation legal relations are directly related to objective legal facts, so. Legalism adjustment can make the subject of litigation rights and obligations specific. 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 litigation subject and other participants in the litigation are based on specific objective legal facts, and the legal evaluation of these objective facts is independent of the will of the parties. From the practice of modern civil procedure law, the vast majority of the subjects of litigation legal relations are directly determined by the legal norms of civil procedure. In the process of specifying the subjects of such litigation legal relations, 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 make the plaintiff's position specific. According to the principle of not suing and ignoring, and the legal proverb of "no plaintiff, no judge", once a party files a lawsuit, its plaintiff qualification is specified because of the prosecution, and whether it belongs to a legitimate plaintiff is irrelevant. Finally, the object of litigation rights and obligations can be specified by legalism. The specific object is the basic element that constitutes the legal relationship of specific litigation, without object or uncertain object. 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 the objective legal facts, which has been unanimously recognized in China's civil procedure law. Generally speaking, because of 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 claims; 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. From what has been said above, 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 elements of establishment and entry into force of any civil litigation act should be clearly and uniformly stipulated by the Civil Procedure Law, and whether it is established or not should follow the expressionism (objectivism) instead of adopting the meaning doctrine. In fact, the code of civil procedure has played its abstract and generalized functions to the maximum extent, and almost all litigation acts with universal contents have been brought into the legal adjustment track. It is precisely because of the legalization of procedural activities and procedural rules that the civil procedure is endowed with the function of normative adjustment. In this sense, China's Civil Procedure Law is not too complicated, but too concise, which can't fully meet the requirements of legalistic 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 agreement, such as consensual jurisdiction and consensual suspension of proceedings. However, compared with the adjustment scope of legalism, this field is much smaller, limited to several forms clearly stipulated by the Civil Procedure Law, and because the China Civil Procedure Law does not recognize the existence of litigation legal relationship between the parties. Therefore, the civil procedure law has extremely strict provisions on this kind of litigation legal behavior that can directly produce litigation effect, and its role is only limited to the supplement of the statutory adjustment method.

Editing the main structure of this paragraph

Another meaning of the litigation procedure is the arrangement of the relationship between the subjects, that is, the main structure of the 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 some theoretical theories, such as private litigation right, abstract litigation right, concrete litigation right, judgment right in this case, dynamic litigation right inside (outside) litigation, and denial of litigation right. Before the 19th century, when public law was underdeveloped, the theory of private right of action (that is, the theory of private right of action) occupied a dominant position. This theory holds that the right of action is the product of every substantive right being violated.