英美司法制度civil-procedure.pptVIP

Lecture 8 Civil Procedure Some fundamental conceptions Substantive law Vs. procedural law That part of the law concerned with the determination of rights, liabilities and duties. That part of the law dealing with procedure and practice in the courts. Lecture 8 Civil Procedure Some fundamental conceptions 2. Adversary trial system Vs. inquisitorial trial system The adversary theory maintains that the truth will be best discovered in the clash between the parties. The inquisitorial system is based on the premise that the truth is best discovered through a disinterested inquiry conducted by a judge. Lecture 8 Civil Procedure In adversary system, the judge acts as a passive umpire. The parties to a dispute and their representatives have the primary responsibility for finding and presenting evidence. The independent judge does not investigate the facts. In inquisitorial system, the judge acts as an active fact-finder concerned with the discovery of evidence. Lecture 8 Civil Procedure It is the function of judge to call witnesses and experts and to make certain that all relevant evidence is produced. Lecture 8 Civil Procedure The stages of a civil proceeding 1. Pre-trial: framing the litigation The major functions served by pre-trial procedures: (1) to provide fire notice to the other party of the case against him. (2) to narrow the issues of fact and law to be tried. Lecture 8 Civil Procedure (1) initial formal process: a. the plaintiff filing the complaint b. the service (copy of the complaint + summons) c. the defendant filing the answer or a demurrer; or default judgment Lecture 8 Civil Procedure d. Discovery Purposes: (1) to preserve the testimony of witnesses who may not be available at the time of trial; (2) to freeze testimony so as to prevent perjury; (3) to permit the parties to find out what documents and testimony exist regarding the disputed fact