Abstract: The close coupling of civil litigation rights and human rights mean how well litigation rights are realized can directly or indirectly affect the judicial protection of human rights. Therefore, human rights protection in the field of civil litigation should take the right of civil litigation as the starting point and core. Based on a sample questionnaire survey of judges and lawyers, this paper conducts an empirical analysis and proposes that the exercise of this right should be taken as the main line to build a comprehensive protection mechanism for this right to realize its role in providing an institutional guarantee for human rights protection. It specifies three aspects: first, the process of filing a case should uphold the freedom and equality of the right to initiate litigation, remove substantial obstacles that affect the filing of the case, and ensure access to justice for disadvantaged groups; second, the trial procedure should have strengthened checks and balances on judicial power to ensure the right of litigation is compromised, and respects the procedural subject status of the two parties to realize equal protection of both parties; the third is to promote the implementation and improvement of relief for this right in the supervisory procedure, clarify the boundary of its relief by procuratorial supervision, and enhance the comprehensiveness and accuracy of the relief.

 

Keywords: civil litigation rights · freedom and equality of litigation rights · checks and balances of litigation rights · relief of litigation rights

 

 

Human rights protection is central to the development of China under the rule of law, and it has advanced from being incorporated into the Constitution and the law to judicial protection in China. In this process, justice has displayed an extreme situation in which the law does not naturally fulfill itself and has to be enforced by litigation¹. Therefore, justice which is designed to resolve disputes and provide rights relief is the last resort for truly protecting human rights and reflecting the principal position of the people. However, human rights protection in civil justice is not as good as that in criminal justice. Civil litigation plays a fundamental role in dispute resolution and is related to the most extensive and urgent needs for human rights relief of the people. As the logical starting point and core of the operation of civil procedures, civil litigation rights are a cornerstone for realizing the judicial protection of human rights. As a saying goes, “there is no lawsuit without the right of action.” Since the court strictly abides by the principle of “no hearings without litigation,” the connection between the occurrence of disputes and public relief mainly depends on how people choose to exercise their civil litigation rights. Therefore, the absence of civil litigation rights is not only a denial of human personality, dignity, and value, but also makes substantive human rights exist only conceptually, instead of objective rights and interests that can be realized as expected.

 

There is a deeper rationale for the connection between civil litigation rights and the judicial protection of human rights. As a procedural basic human right, the exercise of judicial protection of human rights should be fully guaranteed. Theoretically, civil litigation rights have an aspect of human rights. First, the morality of human rights emphasizes the inherent characteristics of their existence, which means that human rights are not based on the premise that they are granted by the state.² The morality of civil litigation rights is self-evident. Originally, the right of action was embodied as a socially initiated “power,” that is, through certain procedures, public adjudication was carried out according to the morality or habits within the organization of clans to prevent violent fights between the two sides of the dispute. As the state monopolizes the power to resolve disputes and people continue to have an instinctive need to ask the authorities to resolve disputes to achieve human dignity, the state should meet this need by designing a fair, efficient, and convenient civil litigation system. However, the civil litigation rights are only legally confirmed and fixed, which changes the realized form of rights rather than being the creation of rights from nothing. Even if, according to the social contract theory, the right of action is a “reward” for an individual who obeys social authority³, the state cannot deny the existence of the right of action, let alone deprive or derogate from the exercise of the right of action arbitrarily. Second, the common nature of human beings is the underlying logic of the universality of civil litigation rights.⁴ As a relief, the right of civil action is a basic need for everyone to maintain their independent personality and freedom of will. It conforms to the general standards of human morality and should be enjoyed equally by all members of society,regardless of race, gender, and identity. Therefore, civil litigation rights are a universal moral right, and they are a human right that cannot be separated for a moment. Practically, civil litigation becoming a basic human right is an inevitable result of historical development. When the idea of modern human rights originated, civil litigation rights were not included as part of human rights. But the idea of human rights changes over time and manifests itself in specific, historical, and developmental phases. Even if it is stipulated in the constitutional text, the human rights system will still continuously improve with the changes of social needs and values.⁵In other words, the idea of human rights and the openness of the system make legal rights continue to expand and gradually move closer to the scope of human rights. This also provides space for justifying civil litigation rights as a human right. In the contemporary age, the right of action has been upgraded to a native need of individuals.⁶ More and more countries have included the protection of the right of action in their constitutions, making it a basic human right. Article 24 of the Constitution of the Italian Republic (1947), for example, states that: “Anyone has the right to bring a lawsuit in court to protect their rights and legitimate interests.” The Basic Law for the Federal Republic of Germany (1949) and the Constitution of Japan (1946) have similar provisions.⁷ Although the Constitution of the United States does not directly provide for the right of action, it is implied in constitutional provisions such as due process and equal protection.8 Civil litigation rights have also become an important standard for international human rights, completing a transformation from a “privilege” to human rights. It now includes two aspects: the right to bring actions to the court, and the right to demand a fair trial in court. Article ⁸ of the Universal Declaration of Human Rights (1948) states that “Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law,” while Article 10 further states that “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and any criminal charge against him.” Subsequently, global and regional human rights conventions such as the European Convention on Human Rights, the International Covenant on Civil and Political Rights, the American Convention on Human Rights, and the African Charter on Human and Peoples’ Rights all affirmed the “right of action” stipulated in the Universal Declaration of Human Rights.

 

It can be seen that civil litigation rights are not only a means by which to guarantee the transformation from due human rights to actual human rights but also an important part of human rights. The protection of the right of action itself is an important part of judicial protection of human rights.Therefore, the research team of this project regards civil litigation rights as a priority of human rights protection in civil litigation. The team has designed a set of questionnaires that examine the exercise of the right of action. This paper summarizes the practice of the right of action in civil case filings, trials, and supervision.⁹ Taking the research results of the research team as the analysis context, this paper offers a deep analysis of the problems existing in the exercise of civil litigation rights in China, and further explores how civil litigation rights can be improved from the perspective of the judicial protection of human rights.

 

 

As seen from the evolution of human society, the primary reason why people’s rights are violated without access to judicial relief is that the exercise of the right of action is restricted, which prevents disputes from entering the judicial process. The secondary reason is unfair trials.¹⁰ Therefore, the filing procedure is the first step toward the protection of civil litigation rights.

 

 

 

Although the case-filing registration system has been fully implemented as early as 2015, according to the survey results, judges of the filing court commonly overstep their authority by conducting substantive examinations of the subject qualifications, legal relationships, litigation claims, and evidence. According to the survey results, only 29.31 percent of the judges clearly stated that they would not conduct substantive reviews of the case filing materials, and 44.83 percent would require lawyers or parties to provide all or main evidence materials when filing a case. 79.84 percent of lawyers said that they had experienced substantive examination when filing a case in the past year, and 66.94 percent were required to provide evidence before filing a case. It can be seen from this that the registration system of civil case filings in practice does not fulfill the purpose of protecting the parties’ right of action. Some judges do not fully understand the substantive idea and institutional requirements of the registration system of civil case filings and adopt too strict control over case filing reviews. This substantially restricts the parties’ exercise of civil litigation rights.

 

 

According to the Civil Procedure Law of the People’s Republic of China (hereafter referred to as the Civil Procedure Law), the court must accept applications that meet the conditions for filing a case.¹¹ However, in judicial practice, judges often refuse to accept applications for filing a case, arbitrarily control the filing, and do not accept applications for filing a case at the end of the year. Through selective case filing, the court excludes from the litigation process those disputes it considers inappropriate, cannot handle, or does not want to handle.¹² According to the survey data, 50.81 percent of the lawyers reported that the court “rejected materials, ignored an application, or did not issue legal documents” in the past year, and 76.61 percent reported that the court did not accept cases at the end of the year. However, 71.26 percent of the judges said that their court did not “reject materials, ignore an application, or did not issue legal documents,” and only 27.59 percent said that their court did not accept cases at the end of the year. In addition, 25.86 percent of the judges indicated that internal documents asked them not to accept certain types of cases, and 14.37 percent reported that they faced interference when considering case filings from people inside the court, other agencies, groups, or individuals. There is a big discrepancy for selective case filing between lawyers and judges, which is partly due to the difference in the way of answering questions in the questionnaires — lawyers mainly answer as individuals, while judges answer as members of the courts.¹³ However, it is undeniable that civil disputes that meet the conditions for prosecution are often excluded from the filing procedure. Moreover, this constitutes a denial of the right of action and is the main reason for the complaint about the difficulty in filing a case.

 

 

As civil litigation rights are equally enjoyed by all members of society, the state has the responsibility to ensure equal opportunities for vulnerable groups who find it difficult to exercise their right of action and enter the judicial process, so as to ensure the indiscriminate fulfillment of fairness and justice. However, from the survey results, it can be seen that civil judicial practice needs to improve to ensure that vulnerable groups can exercise their right of action and protect their human rights as seen in the principles of the Civil Procedure Law. As shown in Figure 4, when parties have difficulties in writing the complaint, only 32.76 percent of the case filing offices accept oral complaints and nearly 70 percent do not accept oral complaints, of which 61.49 percent suggest that the parties provide written complaints. At the same time, nearly 30 percent of lawyers and judges believe that the current regulations on deferring, reducing, and exempting litigation fees do not provide sufficient help to parties who find it difficult to pay fees. It can be seen that in a modern society where the demand for rights relief is universal and common, the judicial system should have a heightened awareness of costs.¹⁵ Otherwise, the rights of disadvantaged groups will be greatly restricted and the role of civil litigations as rights relief will not be fully fulfilled.

 

 

Civil litigation rights as a type of human rights mean that people should be able to timely and conveniently use judicial resources to the full so as to safeguard their rights and interests if they experience disputes or if they consider their rights are being infringed on. Therefore, the freedom and equality in the initiation of the right of action should be ensured in the process of civil case filings, so as to eliminate all kinds of substantial obstacles that block case filings and enable people to seek judicial relief through litigation.

 

 

 

On the one hand, from a functionalist perspective, justice is not omnipotent. It is precisely because of the limitations of the judiciary in social governance and the limited judicial resources that the courts have raised the threshold for prosecution and kept strict control over case filings to avoid indiscriminate litigation and maximize the benefits for the court. On the other hand, the judicial relief mechanism is not only just a moral commitment of the state or the government but also a state responsibility that must be undertaken and cannot be shied away from for any reason.¹⁷ In other words, the delineation of the boundary of judicial power cannot be achieved by imposing any substantial conditions on the exercise of civil litigation rights and preventing people from commencing litigation procedures. This is because, in the final analysis, the court reviews case filings to ensure the effective exercise of civil litigation rights, not to hinder the exercise of the right of action. This is also why the case-filing registration system has replaced the case-filing review system in the first place.¹⁸ By clarifying the formal review requirements for case-filing, the case-filing registration system is designed to eliminate the deeply rooted problems of limiting people’s right of action, such as the court’s substantive review of prosecution materials and arbitrary addition of prosecution conditions, so as to systematically solve the “difficulty in filing cases” caused by non-legal factors and provide a means for the freedom and equality of the initiation of the right of action. To correctly understand and apply the case-filing registration system, the state should fulfill its obligation to protect the right of action, strictly follow the principle of due process and the standard of formal examination in the process of filing a case, and prevent the court from becoming the decisive factor in deciding case filing. It should also be emphasized that a written rejection notification after the right of action is denied should be provided to allow people to seek procedural remedies.

 

 

The Civil Procedure Law stipulates two basic elements for the scope of acceptance in civil litigations, namely the subject and the legal relationship.¹⁹ Only when a dispute or disagreement satisfies both requirements can it enter proceedings to obtain judicial relief. As far as the traditional theory of “division of labor” is concerned, it is logically reasonable to limit the jurisdiction scope of the court. However, from the perspective of judicial protection of human rights, such limitation is not legally open enough. In modern society, people have a heightened awareness of rights and demand rights relief more strongly than in the past. Judicial protection only for personal rights and property rights will greatly limit protection for other types of rights, leading to the exclusion of modern litigations such as the rights in the making and public-interest litigation from access to civil judicial remedies. In this regard, China needs to expand the scope of protection of civil litigation rights and include applicable cases in the scope of the court’s work²⁰ to allow the protection mechanism for the right of action to make up for the statutory law lag and timely response to people’s growing demand for the right of relief. However, it should be noted that there is a limit to the expansion of the scope of protection of the right of action. In other words, the effort to better ensure the right of action should be in line with the country’s available judicial resources and the court’s ability to resolve disputes. Lawsuits are not something that can solve every problem.

 

 

Judicial aid, a key system specially designed to protect the right of action of vulnerable groups, helps people with financial difficulties effectively use the judicial processes and obtain equal access to judicial relief through litigation fee deferment, reduction, or exemption. This helps ensure equal civil litigation rights.

 

Litigation inevitably consumes the limited judicial resources of the state, and people should pay appropriate fees when they use such resources to resolve private disputes.²¹ However, the universality of civil litigation rights gives everyone the right to enjoy and utilize civil judicial relief. The existence of litigation fees should not substantially hinder the exercise of the right of action. Otherwise, justice will become an exclusive privilege for the rich. In the current litigation fee relief system, the reduced and exempted fees are borne by state finance. Therefore, strict rules apply for such reductions and exemptions. In addition to state assistance, a social assistance system for litigation costs should be created and improved to share the litigation costs and reduce the financial pressure on the state. Litigation expense insurance or litigation expense guarantees are used to enable people not eligible for state assistance but needing assistance to obtain equal access to the judiciary and full and fair judicial services.²² The dual support of state assistance and social assistance can minimize the exclusion of people from the legal procedures because they cannot afford litigation fees. This also helps people go about their lives as normal as they engage in litigation activities and demonstrates the human aspect of civil justice.

 

 

Civil litigation rights initiate and restrict judicial power. As mentioned above, with the introduction of the concept of human rights, civil litigation rights are no longer just the right of the people to bring issues to the court but have become a right that is integral to civil actions and can check and balance judicial power. The purpose of the exercise of the right is to promote the fairness of the procedure and outcome of court trials, which requires higher judicial quality.

 

 

 

Modern civil litigation concerns the relationship between the right of action and judicial power and is a two-way model of collaboration and check and balance.²³ However, according to the survey results, in practice, the right of action and judicial power have not yet attained a state of dynamic balance in China. Judges still dominate the trial process and take little notice of the role of civil litigation rights. Therefore, the freedom of the people to exercise their rights is somewhat limited. As shown in Table 1, regarding the right to produce evidence, about 78.72 percent of judges will negotiate with the parties the timeline for producing evidence, but 59.68 percent of the lawyers reported that in the cases they handled in the past year, they have never negotiated with a judge about the time needed for producing evidence. As for the exercise of the right to debate, only 41.09 percent of the judges said that in most cases, the parties were allowed to ask each other questions on their own during the court hearings, and nearly 70 percent of the judges said that they interrupted or restricted statements of facts, reasons or arguments. 98.39 percent of lawyers reported that the judges restricted or interrupted their clients’ statements of facts. Regarding the reasons for such restriction, 2.57 percent were prohibitions from speaking, 47.91 percent limitation on speaking time to improve the efficiency of the trial, and 49.52 percent limitations imposed by the judge to a certain degree. It can be seen that the status of the parties’ right of action in the civil trial procedure needs to be further improved.

 

 

Due process is of great significance to the exercise of civil litigation rights. However, in reality, problems such as unreasonable assessment mechanisms and irregular trial procedures lead to a deviation from the judicial procedures intended by legislation. For example, out of concern for maintaining stability, some courts set unreasonable requirements for judges’ performance evaluation, such as mediation rate, withdrawal rate, appeal rate, and judgment change rate. This forces judges to increase the mediation rate by interfering with the parties’ procedural choices, so as to meet the assessment requirements.²⁵ Then, the judge is more concerned with their performance than with the full protection of the parties’ right of action. According to the survey data, 38.61% of the judges reported that their courts assessed the withdrawal rate; 82.18% believed that the assessment indicators such as the mediation rate, the settlement rate, and the misjudged case rate had an impact on the outcome of the trial; 67.82 percent reported that they asked the parties to close the case by mediation or settlement; 76.73 percent indicated that they would prompt the parties to close the case through mediation by informing the parties of adverse consequences if they didn’t.

 

In addition, judges sometimes do not abide by procedural rules when handling cases; which hurts the fairness of trials. As shown in Figure 7, 72.28 percent of the judges reported that they needed to seek instructions from the presiding judge or their supervisor before making a judgment; and in more than 80% of the cases, their courts needed to report to their higher court. However, such external intervention in the trials was a denial of the interests of the parties at the trial level, resulting in the non-functioning right of action and a departure from the due process in modern society under the rule of law. In terms of the time limit for closing cases, 12.87 percent of the judges reported that they had dealt with overdue cases, but more than 50 percent of the lawyers said that the court closed the cases beyond the statutory time limit. Inefficient case trials will bring an uncalled-for burden to the parties and hinder the realization of the parties’ right of action. This means that judicial power should be exercised in a better and more efficient manner.

 

 

The neutrality of judges as the foundation of judicial fairness is a prerequisite for equal protection of the parties’ right of action. Our survey data shows that 99.1 percent of the judges believe that they hear cases objectively and neutrally. Regarding the equal treatment of both parties, the average score for judges’ evaluations was 9.32 points (a scale of 1-10). However, lawyers gave an evaluation of 7.66 points (a scale of 1-10) on the neutrality of judges; and more than 60 percent of the lawyers reported that judges favored verbally and in actions one party in the cases they handled in the past year. As far as the research is concerned, the different positions of judges and lawyers result in different attitudes towards whether the parties are treated equally. But it is undeniable that in civil trial practice judges still need to live up to the expectations by both parties that they will be treated equally. In this regard, it is necessary to analyze the key reasons for it before exploring a reasonable path to effectively improve the protection of the right of action.

 

 

State power is how to achieve human rights. Because a dynamic balance has not yet been attained between the right of action and judicial power, civil trial procedures should focus on the procedural subject status of the parties, so as to ensure that the parties can fully exercise their right of action in accordance with the law. The state should enhance the strength of the right of action to match that of judicial power, making the two jointly advance the civil litigation process to maintain the fairness of the trial procedures and trial results.

 

 

 

By respecting the will of the parties when expressing their ideas, civil litigation rights can become a decisive factor in the advancement of the procedures and the handling of rights. This embodies the value of freedom and human dignity in civil litigations, effectively restrains the powerful voice of the court, and strengthens the subject status of the parties. In the trial procedure, this is reflected in full respect for the handling of rights by the parties. For example, at the initial stage of the procedure, the parties can either choose litigation as a way to resolve disputes and protect their rights, or they can choose to use other mechanisms for the same purpose. The judge cannot restrict or arbitrarily change the way the parties choose. Although mediation, settlement, and other methods have their due role in resolving conflicts and maintaining order, their inclusion into the trial of a case compelled by the judge will not only substantially limit the rights of the parties to choose the procedures, but also make it difficult for the parties to resolve their issues in the framework of legal rights, obligations, and responsibilities. This is contrary to the purpose of exercising the right of action.²⁹ From this point of view, the judge’s compelled choice of non-litigation dispute resolutions can be seen as a weakening of the parties’ right of action. During the trial process, the parties choose procedures and exercise their litigation rights, such as application for the recusal of the judges, for preservation, withdrawal of the lawsuit to end the lawsuit, and autonomy enjoyed by the parties on certain dates and during periods, thereby enhancing the initiative and voluntariness of parties to exercise their right of action.

 

 

Civil litigation rights, an abstract and dynamic source of rights, can only be practiced when it is embodied throughout the litigation procedures. Therefore, the right of action is the foundation of litigation rights while litigation rights are the specific forms of the right of action and one of the main legal means by which to institutionalize the concept of human rights. Without full litigation rights, the right of action can only exist theoretically or conceptually. In the civil trial procedure, litigation rights, as the touchstone of the subject status of the parties in the procedure, can ensure that the parties can fully protect themselves from the risk of being “objectified” during the exercise of judicial power.³⁰ The lack of litigation rights will weaken the restrictive effect of litigation rights on judicial power and provide opportunities for abusing judicial power.Therefore, litigation rights provide an institutional guarantee that restricts the arbitrary exercise of judicial power and prevents the alienation of judicial power’s functions. It can be seen that the litigation rights system should be strengthened and improved to provide the parties with sufficient litigation rights to restrict judicial power and prevent unfair trial behaviors promptly.³¹ As a key part of the judicial protection of human rights, the judicial power should respect how the parties handle their legal litigation rights; and should provide procedural guarantees for the realization of litigation rights.

 

 

Litigation equality between the parties and the court’s neutrality in judgment form the basic structure of civil litigation. Therefore, the neutrality of judges and the equal protection of both parties is not only respect for the subjectivity of human beings but also helps maintain a stable relationship between the right of action and the judicial power, so as to achieve judicial justice. In the trial procedure, there are mainly three requirements for the equal protection of the parties’ right of action: (1) Both parties, as participants in litigations, enjoy equal litigation status. Judges cannot discriminate against plaintiffs or defendants because of their different roles, and the litigation status of the parties is not subject to their extra-procedural status or position. (2) Both parties have equal access to and can take advantage of justice. The equality of litigation status is only a formal one, and people nonetheless have unequal litigation ability due to differences in economic and legal capabilities. The judge should provide necessary “litigation assistance” to the parties despite the principle of neutrality, and should remove obstacles to the parties’ rights claims through providing favorable “tools” so that the plaintiff and the defendant reach a state of equality in the procedures and realize the substantial equality of the parties’ rights of action.³² For example, the performance of the duty of interpretation by a judge can not only help the parties understand the lawsuit and make appropriate claims, but also help to identify facts, advance the trial of the case, and facilitate the smooth exercise of the parties’ right of action. (3) The risk of winning or losing a lawsuit is equal to both parties. In other words, judges should equally distribute the burden of proof and the risk of unfavorable proof among the parties by strictly following the provisions of the burden of proof and should not make one party bear a disproportionally high risk of losing the case.³³

 

 

When parties’ right of action is infringed upon by a court’s unfair trial, they can use the “introspective” mechanism within the litigation procedure and protect their legal rights by exercising the right of objection, right of reconsideration, right of appeal, right of retrial and other litigation rights.³⁴ But the right of action as a private right always compares unfavorably with the judicial power as public power.³⁵ This natural structural imbalance can hardly be improved even with the help of internal institutions of civil litigation. External supervision of the procuratorial organs provides additional relief means for the parties’ right of action and can curb judicial injustice to a certain extent, so as to help ensure the further implementation of the right of action in individual cases.³⁶

 

 

In our research, judges and lawyers both agreed that the civil procuratorial supervision mechanism has a positive effect on regulating trial behaviors, optimizing civil litigation, and ensuring the exercise of the parties’ right of action. However, from the survey results, the relief effect of the current civil procuratorial supervision system in judicial practice falls much short of its expected functions. For example, in terms of case filing supervision, although according to the data only 28.16 percent of the judges reported that their courts had case filings under supervision in the past year, this proportion is different from the real situation in which many human factors exist in the initiation of the right of action. It can be seen that civil procuratorial supervision only provides insufficient relief for the right of action in the process of filing a case. This might undermine people’s confidence in safeguarding their rights in accordance with the law, and make it difficult to realize the role of the right of action in safeguarding substantive human rights. In addition, as for trial supervision, about half of the courts participating in the survey received civil procuratorial advice, but only 33.17 percent were able to complete the review within one month, and only 14.36 percent completed the review within one to three months. In the evaluation of the procuratorial supervision system, about 40 percent of judges and 40 percent of lawyers believe that the current procuratorial supervision system works does not work well or does not work at all in supervising civil litigation. Moreover, nearly 60 percent of the lawyers reported that it was difficult or impossible to get the refund of the litigation fees after they applied to the court to do so after closing the case. This shows that the relief of the right of action prescribed in the Civil Procedure Law cannot be fully implemented, and procuratorial supervision yields unsatisfactory results from the relief of the right of action.

 

 

Civil procuratorial supervision provides better human rights protection because it is more effective in restricting misuse of judicial power than civil litigation procedures. To address the lack of effectiveness of the relief of the right of action in the current civil procuratorial supervision, the boundary of the procuratorial supervision for the relief of the right of action should be defined before the implementation and improvement of the relief of the right of action can be explored.

 

 

Although the main value goal of civil procuratorial supervision is to protect the right of action, its role as a relief of the right of action is inherent.³⁷ The procuratorial organ ensures the correct implementation of the law by supervising the judicial power and related litigation activities, thereby indirectly realizing the relief of the right of action. The procuratorial organ, which intervenes in the civil procedure as an independent third party, is not a party to the case and does not exercise the judicial power acting on behalf of the court. Therefore, when providing relief of the right of action, the procuratorial organs should remain modest, should not arbitrarily expand the scope of supervision, or excessively interfere with the substantive trial of the case by the judge. Otherwise, they will damage the structure of the trial in which parties join litigations equally and the judge judges neutrally. Also, the relief of procuratorial supervision for the right of action should fully respect the parties as procedural subjects. When a party’s right of action is infringed on by the judicial power, procuratorial supervision, as an ad hoc, external relief mechanism, should first give way to the internal self-relief mechanism of the right of action, so as to ensure the full realization of the relief of the party’s right of action. In addition, the procuratorial supervision procedure should be initiated by a party who applies to do so, so as to prevent the inappropriate interference of the procuratorial organs in the exercise of the parties’ right of action. Only when the prosecutorial supervision power, judicial power, and the right of action achieve a balance³⁸ can the goal to maximize the relief of the right of action be achieved.

 

 

The principle of comprehensive supervision, the basic principle of civil procuratorial supervision, requires the supervision function of procuratorial organs to cover all aspects of civil litigation. This is in line with the penetrating feature of the exercise of civil litigation rights and therefore strengthens the mechanism of the relief of the right of action and provides thorough external support. However, considering the ineffectiveness of the relief of the right of action covered above, this paper only emphasizes the effectiveness of pre-litigation and in-litigation supervision in the relief of the right of action. Pre-litigation supervision is both the primary part of civil procuratorial supervision and an important guarantee for smooth public access to judicial channels. By restricting the human influence on filing a case, the freedom and equality of the right of action can be ensured. This is especially true for situations in which the court does not accept a case filing or does not give a judgment and thus the parties cannot seek internal relief for the right of action through the regular appeal channels. In this regard, the procuratorial organ should strengthen supervision over case filings and urge the court to accept case filings so as to guarantee the realization of the parties’ right of action. In-litigation supervision is the key to the principle of comprehensive supervision. According to the Civil Procedure Law, civil procuratorial supervision mainly takes two forms: procuratorial advice and counter appeals. Counter appeals against valid legal documents are post-litigation supervision and can be initiated upon the application by a party. They provide strong protection for legitimate rights and interests. But in terms of institutional efficiency, the cost of correcting errors is much higher than that of preventing them.³⁹ In-litigation supervision can prevent judicial power from interfering with the right of action promptly, and achieve a balance between judicial fairness and judicial efficiency. Therefore, the procuratorial organs should effectively exert their supervision function during litigation and strengthen supervision over judges’ illegal acts, so as to provide more adequate external relief for the civil right of action.

 

 

According to the concept of precise supervision, civil procuratorial supervision should achieve a balance between method and purpose, input and output in the relief of the right of action⁴⁰. This is achieved by correcting errors and deviations of judicial power through choosing the best supervision method, so as to prevent an obsessive pursuit of the number of cases, which can happen in the effort to comply with the concept of precise supervision. This can effectively improve the quality and effectiveness of civil procuratorial supervision over the relief of the parties’ right of action. To meet the strong demand for the relief of the right of action in judicial practice, procuratorial organs should establish the concept of precise supervision, fully grasp the rigidity of counter appeals, the softness of procuratorial advice, and the flexibility of the notices to correct violations, adopt one or more approaches to supervision, so as to explore the balance between rights relief and power restriction. For example, for flawed judgments that do not affect the fairness of the substantive results of the case, the procuratorial organs should achieve the purpose of supervision and optimize the benefits of the relief of the right of action by trying their best to use procuratorial reconciliation and other methods that can better inspire the consciousness of the parties as subjects and obtain the true approval of the court. As for judges’ violations of laws and disciplines, the procuratorial organs can more actively supervise according to their duties, set up a corresponding follow-up supervision mechanism, in addition to the handover mechanism for leads regarding violations of laws and disciplines and the state compensation system, so as to support multiple litigation rights for the parties.

 

 

Civil litigation rights have become a basic human right because of their essential nature and historical development. Civil litigation rights after integration with the concept of human rights call for higher standards and requirements for the protection of human rights in civil litigation. Only through the continuous protection of civil litigation rights and making them truly become the dominating force in the litigation process can the right of action provide the institutionalized protection of human rights. However, it is a systematic and complex effort to ensure the right of action. The right of action needs to blend with and transform the civil litigation rights and its related theories, systems, and practices under the guidance of human rights; achieve the final transformation through the protection of human rights values such as freedom, equality, and justice; and provide China with a bigger role in the discourse system of judicial protection of human rights.

 

(Translated by JIANG Yu)

 

* LI Yan ( 李艳 ) , Professor and Doctoral Supervisor of the School of Civil and Commercial Law, Southwest University of Political Science and Law.

 

** HU Yue ( 胡月 ) , Master Student of the School of Civil and Commercial Law, Southwest University of Political Science and Law. This article is a phased project of “Judicial System and Human Rights Protection — A Study on the Protection of the Right of Action in Civil Judicial Reform” (19JJD820014), which is a key project of the Ministry of Education’s Key Research Base of Humanities and Social Sciences for Colleges and Universities in 2019.

 

1. Zhu Gang, “The Human Rights Value of Civil Administrative Procuratorial System”, Journal of Changchun University of Science and Technology (Social Science Edition) 12 (2015): 29.

 

2. Zhou Yongkun, “The Research Outline of the Jurisprudence of the Right of Action”, China Legal Science 5 (2004): 16.

 

3. Wu Yingzi, “On the Human Rights Attributes of the Right of Action: From the Perspective of Historical Evolution”, Chinese Social Sciences 6 (2005): 123.

 

4. Jiang Jianming, “On Citizens’ Right of Action as a Basic Human Rights”, Academia Bimestrie 2 (2004): 78.

 

5. Han Dayuan, “The Normative Analysis of Human Rights Clauses in Constitutional Texts”, The Jurist 4 (2004): 9.

 

6. Miao Lianying, “Research on the Constitutionalization of Citizens’ Right to Judicial Relief”, China Legal Science 5 (2004): 27.

 

7. Article 32 of the Constitution of Japan (1946) states: “No one shall be deprived of his right to be tried in a court of law.” Article 19(4) of the Basic Law for the Federal Republic of Germany (1949) states: “Should any person’s rights be violated by public authority, he may have recourse to the courts.” “Although the right of action stipulated in the Basic Law for the Federal Republic of Germany is mainly aimed at the infringement of public power, German courts and jurists have all advocated an expanded interpretation of this stipulation by expanding the provisions of Article 20 (paragraph 2), Article 92, Article 97, Article 101 (paragraph 1), and Article 103 (paragraph 1) of the Basic Law to deduce that the parties also have the right of action in civil matters, that is, the parties have the right to sue in court and obtain a fair trial based on the Basic Law if their civil rights are violated.” Liu Min, “On the Right to Adjudicate Claims — The Constitutional Concept of Civil Litigation”, China Legal Science 6 (2002): 135.

 

8. Tian Ping’an and Ke Yangyou, “New Theory on Civil Litigation Rights”, Journal of Gansu University of Political Science and Law 5 (2011): 49.

 

9. Focusing on the exercise of the right of action, the research team designed three questionnaires, each consisting of three parts, i.e. civil case filing, trials and supervision. Two of the questionnaires were for judges of the filing court and the trial court respectively and one for lawyers. No questionnaire was designed for supervision. According to the Supreme People’s Court, the number of judges nationwide dropped sharply from 210,000 to 120,000 in 2019. According to the sampling formula n of the limited population sample, if the significance level is set to 0.05 (α=0.05) and a random sampling method is adopted, the number of judges in the random sample should preferably be above 385. However, in this survey, the lawyer’s questionnaire is used as reference material for the analysis of the judge’s questionnaires. To maintain a high level of reliability, the research team set the number of samples at more than 200. In the end, a total of 624 questionnaires were sent out and collected, including 376 judge questionnaires (174 questionnaires for judges of the filing court and 202 questionnaires for judges of the trial court) and 248 lawyer questionnaires. For a national survey, the sample size of this survey is small. But since a certain degree of scientificity and accuracy has been obtained, the survey results still have critical reference value for the protection of the right of action discussed in this paper.

 

10. Zuo Weimin, “Citizens’ Right of Action: Research on Constitution and Judicial Guarantee”, Law Science 4 (2001): 6.

 

11. According to Article 123 of the Civil Procedure Law of the People’s Republic of China, “The people’s court shall guarantee the parties’ right of action in accordance with the law. Actions that comply with Article 119 of this Law must be accepted.”

 

12. Lu Yongdi, “From case filing reviews to case filing registration: The Judicial Role of Courts in Social Transformation,” China Legal Science 2 (2016).

 

13. When lawyers handle different cases, the court of jurisdiction may vary accordingly, and they might face more rejections by the court when filing a case. However, the courts where judges sit do not usually vary and judges are relatively conservative about their responses in the questionnaires.

 

14. Questions: In the past year, do you know or experience rejections by your court for case filing at the end of the year? In the past year, has the court ever “rejected materials, ignored an application, or refused to issue legal documents”? Does the court have internal documents that ask judges not to accept certain types of cases? Is there any interference when considering case filings from people inside the court, other agencies, groups or 

individuals?

 

15. Lou Zhengqian, “What it should be and what it really is: Civil Trial from the Perspective of Human Rights Protection”, Journal of Jiangsu University of Science and Technology (Social Science Edition) 3 (2014): 83.

 

16. To this question, 50.4% of the lawyers answered they were not aware of regulations for litigation fee reduction and exemption. Therefore, the data presented in the statistical chart represents the proportion in the other 49.6% of the survey data.

 

17. Liao Zhonghong, “Human Rights Protection and the Amendment of China’s Civil Procedure Law”, Modern Law Science 3 (2005): 57.

 

18. Wu Yingzi, “On the Human Rights Attributes of the Right of Action: From the Perspective of Historical Evolution”, Chinese Social Sciences 6 (2005): 125.

 

19. According to Article 3 of the Civil Procedure Law of the People’s Republic of China: “the people’s courts shall apply the provisions of this Law when considering civil lawsuits between citizens, between legal persons, between other organizations, and among them, due to property and personal relations.”

 

20. Shen Yaping, “Scope of Civil Litigation and Protection of Basic Human Rights — With a Focus on the Protection of Litigation Rights”, Journal of Wuhan University (Philosophy and Social Sciences Edition) 2 (2014): 62.

 

21. Liao Zhonghong, “Human Rights Protection and the Amendment of China’s Civil Procedure Law”, Modern Law Science 3 (2005): 58.

 

22. Tang Li, “Procedural Mechanisms for the Realization of Judicial Justice — Focusing on the Protection of the Litigation Rights of the Parties”, Modern Law Science 4 (2015): 48.

 

23. Tang Weijian ed., The Study of Civil Procedure Law (Peking: Peking University Press, 2008), 51.

 

24. Questions: Do you negotiate with both parties to determine the time limit for producing evidence? Did a judge negotiate with you and the other party to determine the time limit for producing evidence? During the hearing, did you interrupt or restrict the party from presenting facts and reasons? During the hearing, could you present facts and reasons? During the hearing, did you interrupt or restrict the parties when expressing their arguments? During the hearing, did the judge interrupt or restrict you when expressing your arguments? During the hearing, did you allow the parties to ask each other questions of their own accord? During the hearing, did the judge allow you to ask the other party questions of your own accord?

 

25. Liu Hongzhen, “How the Judiciary Can Support Human Rights Protection”, Law and Social Development 6 (2014): 53.

 

26. Questions: Does your court assess the withdrawal rate? Will you ask the parties to settle the case by mediation or settlement? Will you prompt the parties to close the case through mediation by informing the parties of adverse consequences if they don’t? Do you think the assessment of judges (including performance evaluation, mediation rate, case closing rate, overdue trials, misjudged case rate, etc.) will affect the outcome of case trials?

 

27. Among them, 12.38% of the judges reported that they were not aware of the assessment of the withdrawal rate in their courts.

 

28. Questions: In your court, does the judge need to consult the presiding judge or a supervisor before the trial? Does your court need to report to the higher court before the trial? Have you handled any cases that were long overdue?

 

29. Jiang Yinhua, “The Human Rights Dimension of Judicial Reform: An Analysis from the Perspective of ‘Litigation Explosion’”, Law Review 6 (2015):17.

 

30. Ou dan, “The Litigation Model of the Adversary System as a Right: Procedural Subject Rights”, Human Rights Studies 2 (2018): 202.

 

31. Zhang Jinhong and Yu Mingyong, “Civil Litigation Reforms and the Review and Improvement of Litigation Rights of Parties”, Law Review 6 (2000): 85.

 

32. Tang Li, “Procedural Mechanisms for the Realization of Judicial Justice - Focusing on the Protection of the Litigation Rights of the Parties”, Modern Law Science 4 (2015): 42.

 

33. Tian Ping’an and Ke Yangyou, “New Theory on Civil Litigation Rights”, Journal of Gansu University of Political Science and Law 5 (2011): 46.

 

34. Tang Li and Gu Jiajie, “Integration of Procuratorial Work and Trials: On the Boundary of Civil Procuratorial Supervision”, Academia Bimestrie 4 (2015): 167.

 

35. Tang Weijian, “The Positioning of Civil Prosecutorial Supervision System”, Journal of National Prosecutors College 3 (2013): 33.

 

36. Since issues such as appeal and retrial have been mentioned above, for the purpose of this paper, we only discuss here the relief of the civil procuratorial supervision system for the parties’ right of action from an external perspective.

 

37. Zhu Gang, “The Human Rights Value of Civil Administrative Procuratorial System”, Journal of Changchun University of Science and Technology (Social Science Edition) 12 (2015): 30.

 

38. Zhao Xudong, “On the Balance of Prosecution, Judicial and Procuratorial Powers in Civil Litigation,” Political Science and Law 6 (2009): 19.

 

39. Ibid., 21.

 

40. Tang Weijian and Wang Deliang, “The Exploration and Analysis of the Development Path of Precise Civil Prosecution”, People's Procuratorial Semimonthly 10 (2019): 6.