美国民事诉讼法简介

On the Civil Procedure in the United States学生姓名：冯亚举专业班级：F1203学号：201222010105School of LawHenan University of technologySupervisor: Du QiaogeDecember31, 2014On the Civil Procedure in the United StatesCivil procedure is the body of law that sets out the rules and standards that courts follow when adjudicating civil lawsuits (as opposed to procedures in criminal law matters). These rules govern how a lawsuit or case may be commenced, what kind of service of process (if any) is required, the types of pleadings or statements of case, motions or applications, and orders allowed in civil cases, the timing and manner of depositions and discovery or disclosure, the conduct of trials, the process for judgment, various available remedies, and how the courts and clerks must function. Civil Procedure is one of the first-year law school courses mandated by the American Bar Association.[Civil court in the United StatesEarly federal and state civil procedure in the United States was rather ad hoc and was based on traditional common law procedure but with much local variety. There were varying rules that governed different types of civil cases such as cases at law or in equity or in admiralty; these differences grew from the history of "law" and "equity" as separate court systems in English law. Even worse, discovery was generally unavailable in actions at law. In order to obtain discovery, a party to a legal action had to bring a collateral proceeding, a bill in equity in aid of discovery, just to obtain essential documents or testimony from the opposing party.The Conformity Act of 1872 directed federal courts to conform to the civil procedure of the states in which each federal court was located as much as possible, though federal courts were allowed to continue to develop the federal common law of evidence (most of which was replaced a century later by the Federal Rules of Evidence).However, state civil procedure law continued to diverge, particularly when some states but not others began to replace common law pleading with code pleading. The inevitable result was confusion and chaos in the federal courts, particularly as interstate commerce escalated with the Second Industrial Revolution and anincreasing number of cases between citizens of different states were heard in federal courts under diversity jurisdiction.Therefore, the United States federal court system adopted standardized Federal Rules of Civil Procedure on September 16, 1938, which unified law and equity and replaced common law and code pleading with modern notice pleading. There are exceptions to the types of cases that the Federal Rules now control but they are few in number and somewhat esoteric (e.g., "prize proceedings in admiralty"). Thirty-five states have also adopted the Federal Rules to govern civil procedure in their state court systems, although significant modifications were necessary because the federal courts are courts of limited jurisdiction, while state courts have general jurisdiction over innumerable types of matters that are usually beyond the jurisdiction of federal courts (traffic, family, probate, and so on).California, Illinois and New York are notable in that almost all of their sui generis civil procedure systems are codified in statutory law, not in rules promulgated by the state supreme court or the state bar association. The position taken by these states is that civil procedure should be directly managed by legislators elected by the people on a frequent basis, not judges who are subject only to relatively infrequent retention elections (California) or direct elections (Illinois and New York). The other problem with having judges manage civil procedure rules is that they are usually too busy with their regular caseloads to directly draft new or amended rules themselves, so most of the real work is delegated to unelected "advisory committees." The opposite viewpoint, as represented by the FRCP and its state counterparts, is that civil procedure is a judicial function reserved to the judiciary under the rule of separation of powers; legislatures are often too congested and gridlocked to make timely amendments to civil procedure statutes (as evidenced by the chaos and delays surrounding the statutory adoption of the Federal Rules of Evidence); and many legislators are nonlawyers who do not understand the urgent need to constantly revise and improve civil procedure rules.Confusingly, Kansas and North Carolina have "Rules of Civil Procedure" which are actually enacted statutes, not rules promulgated by their state supreme courts.A few states have adopted the general principle that civil procedure should be established in court rules, not civil procedure statutes, but have refused to adopt the FRCP. For example, Rhode Island has its own Civil Court Rules of Procedure. Notable features of American civil procedureGenerally, American civil procedure has several notable features, including extensive pretrial discovery, heavy reliance on live testimony obtained at deposition or elicited in front of a jury, and aggressive pretrial "law and motion" practice designed to result in a pretrial disposition (that is, summary judgment) or a settlement. U.S. courts pioneered the concept of the opt-out class action, by which the burden falls on class members to notify the court that they do not wish to be bound by the judgment, as opposed to opt-in class actions, where class members must join into the class. Another unique feature is the so-called American Rule under which parties generally bear their own attorneys' fees (as opposed to the English Rule of "loser pays"), though American legislators and courts have carved out numerous exceptions. Then tell that Differences between civil and criminal procedureCriminal and civil procedure are different. Although some systems, including the English, allow private persons to bring a criminal prosecution against another person, prosecutions are nearly always started by the state, in order to punish the defendant. Civil actions, on the other hand, are started by private individuals, companies or organizations , for their own benefit. The cases are usually in different courts, and juries are not so often used in civil cases.In Anglo-American law, the party bringing a criminal charge (that is, in most cases, the state) is called the prosecution, but the party bringing most forms of civil action is the plaintiff or claimant. In both kinds of action the other party is known as the defendant. A criminal case against a person called Ms. Sanchez would be described as “The People v. (="versus", "against" or "and") Sanchez,” "The State (or Commonwealth) v. Sanchez" or "[The name of the State] v. Sanchez" in the United States and “R. (Regina, that is, the Queen) v. Sanchez” in England. But a civil action between Ms. Sanchez and a Mr. Smith would be “Sanchez v. Smith” if it was started by Sanchez, and “Smith v. Sanchez” if it was started by Mr. Smith.Most countries make a clear distinction between civil and criminal procedure. For example, a criminal court may force a convicted defendant to pay a fine as punishment for his crime, and the legal costs of both the prosecution and defence. But the victim of the crime generally pursues his claim for compensation in a civil, not a criminal, action.[2] In France and England, however, a victim of a crime may incidentally be awarded compensation by a criminal court judge.Evidence from a criminal trial is generally admissible as evidence in a civil action about the same matter. For example, the victim of a road accident does not directly benefit if the driver who injured him is found guilty of the crime of careless driving. He still has to prove his case in a civil action, unless the doctrine of collateral estoppel applies, as it does in most Americanjurisdictions.[2] In fact he may be able to prove his civil case even when the driver is found not guilty in the criminal trial, because the standard to determine guilt is higher than the standard to determine fault. However, if a driver is found by a civil jury not to have been negligent, a prosecutor may be estopped from charging him criminally.If the plaintiff has shown that the defendant is liable, the main remedy in a civil court is the amount of money, or damages, which the defendant should pay to the plaintiff.[2] Alternative civil remedies include restitution or transfer of property, or an injunction to restrain or order certain actions.The standards of proof are higher in a criminal case than in a civil one, since the state does not wish to risk punishing an innocent person. In English law the prosecution must prove the guilt of a criminal “beyond reasonable doubt”; but the plaintiff in a civil action is required to prove his case “on the balance of probabilities”.*2+ Thus, in a criminal case a crime cannot be proven if the person or persons judging it doubt the guilt of the suspect and have a reason (not just a feeling or intuition) for this doubt. But in a civil case, the court will weigh all the evidence and decide what is most probable.the last word , With the development of economy and culture in China. Need to constantly improve our civil procedure system. America's civil litigation system hassome good content. We must learn United States in civil suits outstanding ingredients. Promote the perfection of Chinese civil litigation system.。