立案登記制的多維檢視與完善進路 — 基於H省HD市司法實踐的實証考察

Abstract

The case-filing registration system was officially put into force in China on May 1st, 2015. The institutional barriers to case filing were dismantled, and the harried “case-filing difficulties”was basically solved. However, the unrevised prosecution conditions, the lack of the case-filing supervisory mechanism, the functional limitations of judicature in resolving disputes, the imperfect case-filing evaluation mechanism, and other factors have lead to the failure of the formal examination to be implemented in practice, and the problems such as the disguised “case-filing difficulties”and formalization of pre-litigation mediation, the forced online case-filing, the increased rampant litigation and the long-waiting-time still exist. Based on the civil litigation structure and the litigation elements theory of the civil law system, This article combines Chinese judicial practice, revises the prosecution conditions, improves the multiple dispute resolution mechanism, integrates the pre-trial procedures, regulates the rampant litigation acts, implements the case-filing supervision, improves the evaluation mechanism, and establishes the new case-filing mode with the help of the Internet.

In addition to the Introduction, this paper has five chapters:

Introduction: This chapter makes a general overview of this paper from the aspects such as the background and significance of the subject, the literature review, the major research direction, the place for fieldwork, the paper structure and the innovation points, in order to explain the theme of this paper.

Chapter One: The basic panorama before and after the implementation of the case-filing registration system. This chapter starts from the historical evolution of China’s case-filing system, and introduces the social background of the case-filing registration system reform; that is, the internal and external scanning of the “changes in social contradictions and disputes”, the “challenge of the changes to the reform of the case-filing registration system” and the “limitation of the judicial dispute resolution function”. Then it clarifies the situation and problem facing the reform work and demonstrates the value of the existence of the examination system and registration system, through the comparison of the present situation and problems of case-filing before and after the implementation of the registration system.

Chapter Two: Theoretical review and extraterritorial observation of the case-filing registration system. From the perspective of comparative law, this chapter sorts out the theories of lawsuit and right of action, interest of suit, object of action, qualification of litigant, etc., and provides a theoretical foundation for the reconstruction of many procedural and substantive elements, such as the sue elements, the litigation elements and the elements of the rights protection involved in the reform of the case-filing registration system. Through the inspiration bringing to our country’s case-filing system by the comparison with the overseas case-filing system, this paper also illuminates the essential differences between the case-filing registration system under China’s national situation and the overseas case-filing system.

Chapter Three: This chapter examines the case-filing registration system from politics, economy, culture and other social perspectives, in order to reveal that we have to study and understand in the context of the social structure and political systems, and the kind of disputes are the courts fit for and able to accept and handle. The establishment of any system cannot be separated from the cultural, political, economic, and ecological environment of the country, and the court is just the last line of defense for justice. Therefore, the judicial relief under the case-filing registration system is only one way of the comprehensive social governance, which, especially in China, must serve the sociopolitical system.

Chapter Four: The examination of different subjects under the case-filing registration system. This chapter, respectively from the perspectives of the judge, lawyer, and the client enters into the interpretation of the case-filing registration system and demonstrates the strategic skills adopted by the judge, the lawyer and client’s evaluation for the case-filing registration system, and the game between them for entering the judicial gate.

Chapter Five: Improvement and future development of the case-filing registration system. This chapter puts forward perfecting suggestion to the system from the institutional aspects of revising the prosecution conditions, improving the cohesive mechanism and multiple resolution mechanism between litigation and non-litigation, integrating and improving the pre-trial procedures, strengthening the regulation of rampant litigation, constructing the new case-filing mode with the help of the Internet, refining and implementing responsible accountability and improving the evaluation system of case-filing registration.

Date of Award	7 Nov 2019
Original language	Chinese (Traditional)
Awarding Institution	City University of Hong Kong
Supervisor	Xin Frank HE (Supervisor) & Guobin ZHU (Supervisor)