The right of civil action is the primary Hilbert's issue in civil procedure jurisprudence.Faced with the risk of being marginalized,the right of civil action urgently needs to prove its usefulness.Since the founding of PRC,the right of civil action has successively been playing a part in the socialist transformation of the civil litigation system,the protection of the independent and impartial exercise of judicial power under the rule of law,the reform to the case filing registration system,and"practical implementation of the civil code".Although the binary theory of the right of civil action is the main theory,which has long been adhered to in China,it does not provide clear conceptual guidance on the norms of the right of civil action and its practice,and the norms in the statute may have different meanings point to the act of suing,the right to sue,the right to win,and the case filing,etc..The development of the theories suggests that protection on the right of civil action doesn't necessarily result in case filing registration system.The reform to the case filing registration system needs to coordinate with the transformation of the model of the right of civil action.There is a kinship between the binary theory on the right of civil action and the specific public law theory on the right of civil action.Due to the absence of key concepts like"the possibility to litigation"and the challenge of"more cases but less judges",the binary theory on the right of civil action also has the same drawback on"difficulty in suing"as the private law theory on the right of civil action.The"litigation explosion"and"unreasonable litigation"are not the inevitable result from the transformation of the model of the right of civil action.With the effective solution of Hilbert's issue on the right of civil action,the reform to the case filing registration system will eventually get out of the"historical three gorges",and achieve balance and win-win between the protection and regulation on the right of civil action.
关键词
诉权保障/立案登记制/民事诉权/起诉条件/案多人少/起诉难/民事诉权
Key words
protection on the right of civil action/case filing registration system/the right of civil action/requirement to sue/more cases but less judges/difficulty in suing/the right of civil action
维普
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