With the development of society and law, we have begun to think about amending our civil procedure law. This paper mainly expounds

The development trend and new situation of contemporary civil procedure law, and the discussion of these development trends and new situations will help to further improve our civil procedure system.

I. Constitutionalization of the Civil Procedure Law

Compared with the past, the civil procedure law shows a high constitutional tendency, emphasizing that the civil procedure law must conform to the Constitution. civil

Procedural law is the concrete practice of the constitution. In this sense, it can be called "the applicable constitution". Constitutionalization of civil procedure law is a problem that all countries in the world must face seriously today. In the field of civil procedure law, how to fully practice the spirit, principles and norms of the Constitution is briefly expounded from the following aspects.

First, the purpose of the civil procedure law is to ensure the realization of the legal purpose established by the Constitution. Under this premise, modern

The purposes of civil procedure law are diverse: protecting private rights, resolving disputes, maintaining and unifying the legal order and the function of policy formation, and maintaining the political order of the whole society and the legitimacy of state power. Generally speaking, many purposes of civil litigation are inseparable. However, for the parties, protecting private rights and resolving disputes are the most direct purposes of their use of civil litigation. The state has the responsibility to protect its citizens, and the establishment of a civil litigation system by the state should first meet the litigation purpose of the parties. As for the purposes other than private rights protection and dispute resolution, most of them are considered by the state. Litigation protection is given to the legitimate interests that are not recognized by the current substantive law, especially after the emergence of a large number of modern lawsuits, the function of civil litigation to promote the formation of substantive rights and policies is increasingly obvious. Modern society has placed higher social expectations on litigation, and social functions such as redistribution of social resources through litigation have been paid more and more attention.

Second, as far as the basic principles of civil procedure law are concerned, the constitutions of many countries generally stipulate the principle of judge independence, while our country's constitution does.

Make the court independent. Public trial is recognized by the principles of the Constitution and procedural law. Almost all countries' constitutions stipulate the principle of equality and establish the principle of national equal status and national treatment; From the perspective of rights, that is, citizens enjoy equal rights, which is embodied in the principle of equality of parties in the civil procedure law. Corresponding to the debate doctrine and punishment doctrine is the principle of judicial passivity, which can be regarded as the concrete embodiment of constitutional freedom in civil litigation. At the same time, because it solves the dispute of private rights, it is reasonable to respect the litigation autonomy of the parties. From the perspective of rights, the parties' punishment of their litigation rights involves the choice of procedures, and the principle of debate embodies the content of litigation hearing rights.

Thirdly, as far as the right of civil action is concerned, the legal basis for citizens to enjoy the right of civil action is firstly the Constitution, and the right of action is endowed by the Constitution.

The basic right of citizens to request judicial relief. The constitutionalization of the right of appeal is one of the trends of modern constitutional development, and this trend is becoming more and more universal. Nowadays, many countries and regions have raised the right to appeal to the basic right in the constitution. It can be said that in fact, all countries recognize that nationals have the right of appeal (judicial relief). The author believes that the constitution of our country should clearly stipulate that citizens have the right of appeal and its protective provisions, so as to clarify and highlight the constitutional status and value of the right of appeal. In fact, it is the constitutional obligation of the court not to refuse the trial illegally to raise the civil litigation right to the basic constitutional right.

Fourthly, as far as the basic procedural rights of the parties are concerned, they can be roughly divided into: the right to participate in the procedure, the right to choose the procedure and the fair application of the procedure.

Seek power and obtain timely jurisdiction. The right to participate in the procedure generally includes the right to receive notice of the procedure and the right to hear the lawsuit. The right to receive notice of the procedure means that the parties should be fully aware of the progress of the procedure. Germany and the United States have always advocated that the right to effective procedural notice is a constitutional right. The case law of the German Constitutional Court determines that the Court of Appeal should undertake the notification service. The Supreme Court of the United States believes that the lack of procedural notice should be regarded as one of the cases that infringe the due process rights of the parties. The right of hearing in litigation includes the following basic contents: the parties have the right to apply, claim facts and produce evidence in the trial procedure; The other party should be able to be informed of this and state their opinions. Even if the court investigates ex officio, it shall not take the facts and evidence not presented by the parties as the basis of the judgment. In the field of civil litigation, the right of procedural choice mainly means that the parties have the right to choose litigation procedures and other procedural matters within the scope stipulated by the Civil Procedure Law. The Constitution also guarantees the basic procedural rights of all parties, such as the right to claim compensation through fair procedures and the right to make timely decisions. The right of fair procedure claim is the right of the parties to request an independent court and judge to conduct a fair trial (procedural justice and substantive justice) according to the law. Obtaining timely jurisdiction refers to the right of the parties to request the court to conclude the case in time within the time limit prescribed by law. A fair and timely trial is the requirement of a country ruled by law.

Fifth, as far as court decisions are concerned, any judicial system loyal to the rule of law needs logical and convincing judgments.

Become a component. The facts, reasons and applicable legal basis of the judgment constitute the reasons for the judgment. The facts and reasons identified in the judgment, that is, the facts and reasons confirmed by court debate and court review, are the factual basis for the court to make a judgment. Legal basis, including substantive law norms and procedural law norms on which court decisions are based. The constitutions of some countries clearly stipulate the obligation of the court to attach the reasons for the judgment (Greece, Turkey, Spain, Belgium, etc.). In other countries, according to the principle of a country ruled by law, it is not allowed to completely exclude the obligation of the court to attach reasons for judgment.

Sixth, the constitution should require the stability (predictability) of litigation procedures. The requirements of the Constitution for the predictability of litigation procedures include

Stability of program operation and stability of program results. The former refers to the orderly implementation of litigation behavior by the parties under the premise of predicting the outcome of the procedure. Therefore, the Civil Procedure Law stipulates the exercise elements (such as prosecution elements) and procedure order of important litigation acts, which is convenient for the parties to choose procedures and implement litigation acts, and prohibits the courts and parties from arbitrarily changing procedures. The latter means that the judgment made by the national judicial organs in accordance with fair procedures is conclusive, that is, it is forbidden for the parties to repeat the lawsuit on the same case and the court to repeat the trial. (3) Second, the convergence of civil procedure law. The civil procedure laws of continental law system and common law system have something in common, such as emphasizing the neutrality of judges and equality of parties, public trial, direct speech principle, debate and punishment. Regarding the debate, the emphasis is on the relationship between the two sides.

Facts that do not appear in the debate cannot be used as a basis for judgment; The undisputed facts of the case should be used as the basis for the judgment; The court's investigation of case evidence is limited to the evidence presented by the parties in the debate. Disposition emphasizes that the court can only make a ruling within the scope of the parties' claims, and the parties can end the lawsuit by applying for withdrawal and litigation settlement. In order to adapt to the new situation of society and litigation, countries and regions of the two legal systems began to reform the outdated civil litigation system, including absorbing and learning from each other's strengths, thus showing a trend of convergence in the whole legal field, including the field of civil procedure law. For example, in the past, the situation of litigation in Germany was roughly that because the parties often went directly to the court for trial without adequate preparation, the result was usually that the disputes between the parties on the case could not be clarified until several sessions were held, and litigation delays were often inevitable. Therefore, in 1976, Germany draws lessons from the practice of the United States and divides the trial into two stages: preparation and defense. The preparation stage mainly solves the problems of clear arguments and exchange of evidence, and then enters the main debate stage, and the judgment is made as far as possible after the oral debate. In the past, in the pre-trial preparation procedure in the United States, the procedural initiative of the parties or lawyers and the negative position of the judges were overemphasized, which led to the abuse of the discovery procedure by the parties and the repeated discovery of evidence, resulting in slow litigation and high cost. In this regard, since the mid-1970s, the United States has revised and improved the pretrial preparation procedure, and strengthened the handling of judges' power with reference to the German civil procedure law, such as limiting the time and frequency of evidence discovery.

Under the background of globalization, in order to carry out economic, trade and cultural exchanges smoothly and solve transnational and cross-border problems effectively and conveniently.

In regional civil disputes, countries are actively exploring the convergence or unification of civil litigation systems. This effort is also reflected in the internationalization of civil procedure law, which will be discussed below. At the same time, countries and regions with the same or similar historical, cultural, socio-economic and political systems (such as Latin American and European countries) are actively exploring the formulation of a unified civil procedure law.

It must be emphasized that the convergence or unification of civil procedure law does not eliminate the gap between civil procedure laws of various countries or two legal systems.

Due to the far-reaching influence of the history and culture of the two legal systems, the differences in their civil litigation systems will exist for a long time. It is still difficult to judge when the civil procedure law of the country or the countries with two legal systems is highly or completely unified.

④ Third, the internationalization of civil procedure law.

The internationalization of civil procedure law is also a concrete form of its convergence, which is introduced separately here to highlight its internationalization.

The internationalization of civil procedure law is mainly manifested in the fact that some international treaties clearly stipulate the basic principles of civil procedure (law) and the basic rights of litigation and procedures of the parties. For example, Article 8 of the Universal Declaration of Human Rights stipulates: "When the basic rights granted by the Constitution or laws are violated, people have the right to ask the competent court for effective relief." Article 10 stipulates: "When determining the civil rights and obligations of the parties or hearing criminal charges against the defendant, people have the right to a fair and open trial by an independent and impartial court in complete equality. Article 14 1 of the International Covenant on Civil and Political Rights stipulates that everyone is equal before the court, and people have the right to a fair and public trial by an independent and impartial court established according to law when trying criminal charges against the defendant or determining the civil rights and obligations of the parties.

Fourthly, the specialization of civil procedure law.

The diversification of civil procedure law is first manifested in the establishment of traditional first-instance procedure, appeal procedure and retrial procedure. exist

In today's society, the diversification of civil procedure law is mainly manifested in the specialization of procedures. For example: First, review and implement separate legislation. That is, civil trial procedure and civil execution procedure should be legislated separately. The former is generally called civil procedure law, while the latter is generally called execution law. Such as Japan and Taiwan Province province. German, China Mainland and Macau adopt trial and execution legislation: civil trial procedure and civil execution procedure are stipulated in the civil procedure law, commonly known as the civil procedure law.

At present, China's theoretical and practical circles are actively discussing the formulation of enforcement law.

Second, the legislation of civil special procedures. Civil special procedure is relative to ordinary litigation procedure. Civil affairs from all over the world

According to the provisions of the procedural law, special procedures can be divided into: 1 special procedures applicable to disputes over civil rights and interests, mainly including: (1) litigation procedures with special objects, such as personnel litigation procedures. Japan has enacted the Personnel Procedure Law and the Family Trial Law respectively. (2) Specially established simple special procedures, such as certificate proceedings. Another kind of summary procedure is the simplified procedure of the usual litigation procedure, such as summary procedure (belonging to the usual litigation procedure in China) and small claims procedure. Non-litigation procedure. There are generally two kinds of legislative examples about the procedure of non-litigation events: (1) It is stipulated in the Civil Procedure Law that such non-litigation events are closely related to litigation cases and the determination of civil rights, such as cases of property restriction, cases of death declaration and cases of public summons.

(2) Separate legislation, such as Germany's non-litigation jurisdiction law, Austria's non-litigation jurisdiction law and Japan's non-litigation jurisdiction law.

The procedural law and non-procedural law in Taiwan Province, China.

In addition, in modern society, civil procedure law will contain more and more new scientific and technological factors. Science and technology of civil procedure law can

It will bring low litigation cost and convenience, but at the same time it will also impact the traditional litigation concept and system. As far as the internet and digital communication technology are concerned, what is the legal effect of electronic materials formed in economic and daily communication, using the internet to investigate and collect evidence around the world and at home, and sending court orders and litigation documents by e-mail? If the multimedia video conference is used to exchange case facts and legal opinions, will it lose the legitimacy and solemnity added by the traditional layout and costumes of the court to the legal proceedings? What impact will it have on the concept of direct meeting of the parties, the witness appearing in court in person, and the principle of direct words. It is urgent to fully understand and reasonably solve these problems.

In any case, the civil procedure law should fully and reasonably accept modern technology, and the key to the problem is how to fully and reasonably use modern technology. 1999 This kind of problem has been discussed at the 1 1 World Congress of Litigation Law held by the International Association of Litigation Law in August.