With the development of The Times, civil litigation system is changing, it has become the undisputed facts.Around the world, into the 90 s, the United States has embarked on the civil judicial reform.The countries around the world are modified in the trend of civil litigation system, is unwilling also lonely, on the basis of the reform of the original, are ready, in the traditional iron wall of adversary system, the parties to be forced open a gap, and with the air of penetration position right may not believe it for a new century.Germany and France is working on the reform of civil procedure.Our country also finished in the early 90 s a new formulation of the civil procedure law, and the establishment of the new civil procedure law as an opportunity, in the mid - 90 - s raised a hot wave of reform of civil trial mode, from the current practice of civil trial mode reform of some, mainly include: carry out "one pace reachs the designated position" execution of work, weaken the court before the preparation;Establish "hearing" and "debate" trial mode, the abolition of the "ask" "question type" trial system;Strengthening the evidential burden of the client, is clear about the risk of losing the burden of proof and proof;Inside the court in a wrong person, implement the responsibility system for the trial.These reforms, has achieved certain results, and there have been some misunderstanding.Especially in some areas affected by the civil action theory, will be changed in some western countries are made of old system fully transplanted to come over to our advantage.Investigate its reason, main is to introduce blindly, did not go into details of the system, to the world of civil litigation reform to don't know much.And the European and American civil procedure covers the world two big civil litigation pattern, namely the adversary litigation mode and the functions and powers doctrine lawsuit mode.For this reason, in our country civil trial reform today, it is necessary for Europe and the United States, in order to understand the trend of the civil litigation reform this sample to avoid the blindness of system transplantation.
A, the trend of the reform of the us federal civil procedure rules
In the United States, the states according to the state's constitution, make its own court system and the civil procedure law.So, we can say that the United States has yet to a unified national civil procedure law, this is the status quo of the civil procedure law of the United States.But for a long time the vast majority of states introduce the adversary traditional lawsuit system of Anglo-American law system, and states of procedures and rules of the civil lawsuit is moving into the direction of a unified, this is the actual situation of the civil procedure law of the United States.In 1938 the Supreme Court of the United States, according to the authorization of the United States congress legislation, formulated the "U.S. district court in civil procedure rules.Federal civilian rule has significant influence to the states, the civil procedure law, most now is the civil procedure law of the state according to the ~ of the rules, so the federal civilian rule in fact became the most representative of the civil procedure law.
America's civil litigation in a typical client model.While some American lawyer insisted that America's civil litigation system is a model for other countries for reference, but in fact, in the United States, on the clamor for the reform the current litigation system has reached an unprecedented level.Pay before U.S. President quayle in 1991, the annual meeting of the American bar association criticized way: "it's surprising litigation costs and long term, has made us the competition ability of the inner mechanism of damage".In 1984, the then chief justice, beauty of the warren.In 1984, the United States is jointed meeting warned that "our system too spend money, too painful, too damaging, also too inefficient"
The current U.S. civil litigation problems mainly include the following:
First, the surge in lawsuits, but the judge number, less burden and to delay the proceedings.The western capitalist countries in order to establish the image and strictly limited number of judges shall say makes sense.But the judge number does not increase, as population growth in the case and the judge burden is one reason for the delay in litigation.According to statistics, 1990 a year to the United States federal and state court of civil cases to 18.4 million.The federal district court in 1990 civil cases in 207742, the United States federal district court judge, 649 people, plus subsidy judge is less than 1500 people;State court judges to head off a total of nearly 30000 people.649 by the federal court judge in 1990 of the federal court of 207742 civil cases, an average of 320 pieces, each judge had reached 1984 per person per year on average in 508.
Surge in the second, attorney fees, brings heavy burden to a party, a company or enterprise will pass on the cost to the customer, ordinary citizens at the government feared because of can not afford a lawyer.Lawsuit system of the United States is the socialism, party in the proceedings without lawyers, but the United States have no legal attorney fees system and standard, the lawyer fees completely commercialized, it is the main reason why America costs money.Western countries such as Britain, France and Germany is a strong law system, namely the parties litigation must be represented by lawyers to suit and people litigation costs within the attorney fees shall be borne by the losing party.Because of the losing party burden attorney fees for lawyers paid have unified rules of law.But the United States is not into the litigation costs, fees is decided by negotiation between the principal and lawyers.Now, the American lawyer fees are paid in time, also have to win the success of the bid calculation system of remuneration.
Wage is time according to the lawyer's experience level and the time, according to calculate how much per hour, $100 to $500 per hour.Contingent fee system is only in the case of client won, according to the proportion of the profits to pay legal fees, if client lost won't pay the attorney fees a special lawyer charges system in the United States.The charging system most used in case of infringement, antitrust and so in a sense is to facilitate the victim in the proceedings of a kind of system.Of this charge system, but the attorney fees out of control.The U.S. economy and thus a loss of $130 billion a year.The contingent fee although there is no unified regulation, but generally after the first trial to achieve prevailing judgment, is the 33.1% of the amount, if the lawyer in charge of after the appeal won consecutive, is 40%.
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