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指导英国essay:Civil justice reform in England

论文价格: 免费 时间:2018-11-23 17:04:52 来源:www.ukassignment.org 作者:留学作业网
导读:这是一篇英国essay范文,讨论了英国民事司法的改革。英国民事司法的改革统一了高等法院和郡法院的诉讼规则;为加强法院对诉讼的控制,重点推行案件管理制度;为防止诉讼过分迟延,采取在快速程序中制定确定的时间表等措施;通过完善“早期卸除”程序,严格控制诉讼费用;鼓励当事人采取ADR解决纠纷。
 
At the end of the 20th century, most countries faced different forms and degrees of judicial crisis: high litigation costs and long litigation process made the court unable to provide an effective way to guarantee rights and settle disputes. Britain, too, faces a particularly acute crisis in its civil justice system. High litigation costs; Undue complexity; Uncertainty about the time and money that might be spent in litigation; Impartiality, that is, the party with strong financial resources can use all the weaknesses of the system to defeat the opponent. Hence the growing clamour for reform in Britain. In 1994 the civil justice reform was formally unveiled in Britain, with Lord Woolf appointed by the Lord chancellor to lead it. Lord Wolf published the interim report on civil Justice reform in England and wales in June 1995 under the title Access to Justice. The final report was published in July 1996. In 1998, new civil procedure rules based on the above two reports came into effect on April 26, 1999.
20世纪末,大多数国家面临着不同形式和程度的司法危机:高昂的诉讼成本和漫长的诉讼程序使法院无法提供有效的保障权利和解决纠纷的方式。英国的民事司法系统也面临着特别严重的危机。诉讼费用高;不合理的复杂性;关于可能在诉讼中花费的时间和金钱的不确定性;公正,即拥有强大财力的政党可以利用系统的所有弱点来打败对手。因此,英国改革的呼声不断增加。1994年,民事司法改革在英国正式公布,由伍尔夫勋爵任命由校长任命领导。沃尔夫勋爵于1995年6月以“诉诸司法”为题发表了英格兰和威尔士民事司法改革的临时报告。最终报告于1996年7月公布。1998年,基于上述两份报告的新的民事诉讼程序规则于1999年4月26日生效。
The reforms currently under way or to be carried out in the UK are mainly based on the scheme proposed by Lord wolff in the report. The new rules of civil procedure put into effect on April 26, 1999 generally adopt the reform views of Lord wolff, which constitute the core content of the British civil litigation reform and is an important phased result. As envisaged in the final report, civil justice reform should achieve the following objectives: to avoid litigation as much as possible; Reduce litigation antagonism. Increase cooperation; Simplifying litigation; Shortening litigation time and making it more deterministic; Litigation costs have become more affordable and predictable and more commensurate with the value and complexity of the case; Financially strapped parties can Sue on a more equal basis; The division of responsibilities between the judicial department and the administrative department in the civil justice system is clearer. Designing the structure of the court and the disposition of judges to meet the needs of litigation; Effectively appoint judges. To enable it to administer proceedings in accordance with the new rules and protocols of civil procedure; The civil justice system can respond to the demands of litigation. According to article 1 of the new rules, the basic goal of the new rules is to ensure that the court hears cases fairly.
 
The content of civil justice reform in England mainly includes the following aspects: unifying the litigation rules of high court and county court; In order to strengthen the court's control over litigation, the case management system should be emphasized. In order to prevent the litigation from being excessively delayed, measures such as setting a definite timetable in the rapid proceedings should be taken; Strictly control litigation costs by improving the front loading program; Encourage parties to adopt ADR to resolve disputes.
 
Thus it can be seen that whether it is to take measures to expand the acceptance of the judicial system, remove the obstacles for parties to resort to the judicial system, or to reform the civil judicial system. Since the mid-1990s, the civil justice reform in the UK has always taken the guarantee of the effective realization of the fair trial right of British citizens as the top idea. But Britain did not neglect the role of alternative dispute resolution mechanism that ADR, on the contrary, in the process of the civil judicial reform, countries to persuade the actions to be a final resolve the dispute relief measures, encourage national as far as possible to avoid litigation, for certain types of dispute, the court to encourage the parties in the resort to the court before the use of alternative dispute resolution mechanism, namely to achieve justice by ADR.
 
Different from the American practice of "strongly supporting and actively intervening", the British practice of ADR adopts the practice model of "vigorously supporting and cautiously intervening". The legislative and judicial departments of the United Kingdom strongly support the development of ADR. The British court mainly aims to provide indirect but effective support for the operation of the self-sufficiency and autonomy of ADR, but is not willing to get too involved in the ADR mechanism. Therefore, British courts do not tend to provide ADR products directly, i.e. set up courts to attach ADR, but take some measures in civil justice reform to encourage citizens to use ADR, such as actively trying to use economic leverage, including legal aid funds and litigation costs to urge parties to voluntarily adopt ADR; Through the court's case management system, all civil courts are provided with alternative dispute resolution mechanisms such as information resources. At present, the main forms of British ADR include: mediation, mediation, administrative judgment, mini trial, expert decision, early neutral assessment, judicial assessment, arbitration, etc. These adrs are combined with civil litigation to form a multi-dispute settlement mechanism with complementary functions and coordinated development.
 
In addition, most importantly, before the civil justice reform, the development of civil ADR organizations in the UK has formed a certain scale. The role of the three major British ADR organizations, namely the Academy of Experts, the ADR group and the dispute settlement center is particularly important. These ADR organizations not only resolve disputes, but also do a lot of work in ADR human resources construction. In particular, the expert association has made great achievements in training neutral second persons. This has laid the necessary organizational and human resource foundation for the sustainable development of ADR.
 
There is no litigation explosion in China. Western rule of law developed countries to promote ADR, mainly due to the explosion of litigation. In China, an important factor that attracts people's attention to ADR is also caused by the pressure of the increasing number of cases that judicial departments are facing, but this pressure is by no means the so-called "lawsuit explosion". Between 1990 and 1999, courts across the country received an average of 424 cases a year. 90,000 units, a 3 on the previous 13-year average. In 1989, the number of judges was 120,000, and in 1998, the number of judges was about 170,000, an increase of 41. 67%. In terms of the workload per judge, take 1998, which had the highest settlement rate, as an example. 88 pieces. It can be seen that, although the number of cases accepted by Chinese courts has increased rapidly in recent years, the court is far from exhausted. The judicial pressure in China is caused by the low efficiency of the judicial system.
 
Non-litigation dispute settlement resources are not fully utilized. The current ADR procedures in China mainly include mediation and arbitration. In practice, the former mainly includes people's mediation, litigation mediation, administrative mediation and mediation in arbitration. But resources are severely idle, resulting in huge waste. Take mediation as an example. During the period from 1990 to 2004, not only did the number of cases mediated by the people exceed the total number of cases settled by the courts in the same period, but the number of cases settled by the courts accounted for up to 58. 85%, it is no exaggeration to say that mediation plays an irreplaceable role in any other dispute settlement method in Chinese society. However, although civil disputes have been rising every year from 1990 to 2004, the number of settlements has not been increasing year by year, but has been decreasing exponentially. In 1990, the total number of civil cases mediated by the people was 740. 920,000, down to 449 in 2003. In 1990, the court mediation accounted for 43 cases in the same period. 67 percent, up from 58 in 1994. 85%, down to 29 in 2003. 94%. Mediation is faced with an unprecedented dilemma: the utilization rate of mediation has declined all the way, and mediation has been gradually marginalized.
 
One - sided view of rule of law. Recently, the focus of the judicial reform in our country are mainly concentrated in the people's court within the judicial system reform and improvement of the system of theory aspect, and ignore or downplay the ADB system construction, this is because since the 1990 s, in theory and practice of law, there is a kind of too much emphasis on the judicial function improper exaggerated tendency of the role of litigation, the mediation mechanism of ADR mistaken for damage to the rule of law. This view and tendency to treat the relationship between litigation mechanism and non-litigation mechanism "has greatly changed from the past theory of legal futility to the theory of legal omnipotence, as if any problem and any dispute could be solved through judicial channels". This is essentially a misunderstanding, and the background of judicial reform and the limits of justice and ADB in the four countries of Europe and America. The successful experience tells us that modern countries ruled by law not only do not exclude the form of ADR, but also need ADR to divert the solution channels of disputes, alleviate the increasing judicial load and save limited judicial resources.#p#分页标题#e#
 
Firstly, western ADR is carried out under the condition of highly legalized society and strong self-discipline of social subjects. However, China is now in the period of social transformation. The traditional value system has been loose, and the new value system has not been established yet. The awareness of citizens' rights is not strong enough, and the ability of self-discipline is low. Therefore, ADR, as an alternative solution based on the autonomy and self-discipline of the parties, lacks the self-discipline of the parties at the present stage in China and cannot be guaranteed, and most ADR falls into litigation as a mere form. Secondly, the socialist market economy is in the stage of establishment and perfection, which makes the forms of civil disputes diverse, the main body behavior lacks standard, and the civil legal relations change rapidly. Therefore, the way of litigation with authority and compulsion to determine rights and obligations becomes the first choice of parties and the social need.
 
The inherent disadvantages of ADR also hinder its development. Because ADR does not have the mandatory effect, the standard and the procedure's arbitrariness, after the host the organization quality is uneven, as well as the party's strength difference causes the unfair result, causes the party to lack the trust each other, the court also disregards the cooperation.
 
The law provides for the settlement of non-litigation disputes, such as people's mediation and arbitration, to be too simple and principled. Our country 1995 promulgate "arbitration law" only 80 articles. The law has been implemented for more than seven years, and the legislature has yet to formulate relevant implementation measures. The lag of arbitration legislation directly makes it difficult for each region to complete the task of establishing arbitration organization. As for mediation, besides people's mediation, the laws on settling disputes between professional intermediary agencies such as Chambers of commerce, law firms, accounting firms, architects' associations, insurance associations and banking associations are still missing.

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