论民事诉讼答辩失权制度

发布时间：2018-07-11 15:02

本文选题：民事诉讼 + 答辩　；参考：《河北大学》2014年硕士论文

【摘要】：答辩失权制度无论是在日本、德国具有代表性大陆法系国家，还是在英国、美国具有代表性的英美法系国家都已经确立，，在司法实践过程中有利于保护诉讼当事人、避免诉讼迟延、提高诉讼效益。然而，答辩失权制度在我国民事诉讼领域并没有得到确立。我国的民事诉讼答辩制度为随时提出主义，被告是否答辩，都不会影响法院审理案件。然而这种随时提出答辩主义必然会导致当事人恶意不答辩等行为来拖延诉讼时间，程序进程缓慢，从而导致案件不能按照正常程序顺利解决，当事人的诉讼利益受到损害。纠纷不能快速得到解决，就会加深矛盾，甚至严重损害司法的权威。为了避免这种现象的发生，有必要对我国民事诉讼答辩制度进行反思，应该尽快确立答辩失权制度。本文主要论述民事诉讼答辩失权制度的相关理论，并提出如何构建我国的民事诉讼答辩失权制度，正文分为四个部分。从两大法系的主要国家设立的答辩失权制度进行分析，以便为我国确立答辩失权制度作为指导。然而我国民事诉讼的相关立法上并没有确立答辩失权制度，并在司法实践过程中讨论缺少此制度带来的不利后果，以这两方面为基础，来反思我国现行民事诉讼答辩制度，在此基础上来讨论具体在我国如何构建民事诉讼答辩失权制度，为构建答辩失权制度提供了可行性的土壤环境，那么答辩失权制度才能在我国民事诉讼法中成长，才会适应我国目前的司法现状。笔者就我国确立答辩失权制度共提出四项立法建议，并论述了不适用答辩失权制度的情形。本文在结论部分呼吁我国民事诉讼法要注重答辩失权制度，对民事诉讼法进行修改，尽快确立此制度。
[Abstract]:Whether in Japan, Germany or the United Kingdom, the system of the loss of right of reply has been established in the United States, which is beneficial to the protection of litigants in the course of judicial practice. To avoid delay in litigation and improve the efficiency of litigation. However, the system of loss of right of defense has not been established in the field of civil litigation in China. The defense system of civil action in our country is always put forward, whether the defendant pleads or not will not affect the court hearing the case. However, this kind of doctrine of pleading at any time will inevitably cause the parties to delay the time of litigation and the process of proceeding is slow, resulting in the cases can not be resolved smoothly according to the normal procedure, and the interests of the litigants are damaged. Disputes can not be resolved quickly, will deepen contradictions, and even seriously undermine the authority of the judiciary. In order to avoid this kind of phenomenon, it is necessary to reflect on the defense system of civil action in our country, and establish the system of losing the right of defense as soon as possible. This paper mainly discusses the relevant theories of the system of civil action's loss of right of defense, and puts forward how to construct the system of civil lawsuit's loss of right of defense. The text is divided into four parts. This paper analyzes the system of the loss of the right of reply established by the main countries of the two legal systems, in order to establish the system of the loss of the right of reply as the guidance for our country. However, the relevant legislation of civil action in our country has not established the system of losing the right of reply, and in the course of judicial practice, we have discussed the adverse consequences brought by the lack of this system, and based on these two aspects, we have reflected on the current system of defense of civil action in our country. On this basis, this paper discusses how to construct the system of the loss of the right of defense in the civil litigation in China, which provides a feasible soil environment for the construction of the system of the loss of the right of reply, so that the system of the right of defense losing can grow in the civil procedure law of our country. Only then can we adapt to the current judicial situation in our country. The author puts forward four legislative proposals to establish the system of the loss of the right of reply in our country, and discusses the situation that does not apply to the system of the loss of the right of reply. In the conclusion part, this paper calls on our country's civil procedure law to pay attention to the system of the right of defense, to amend the law of civil procedure, and to establish this system as soon as possible.
【学位授予单位】：河北大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.1

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