民事诉讼拘传原告制度之批判

Criticism on the System of Summoning the Plaintiff by Warrant in the Civil Action

《关于适用<中华人民共和国民事诉讼法>的解释》规定对经两次传票传唤不到庭无法查清事实的原告可以进行拘传,此规定不符合相关法律原则与程序原理,在达到其预期目的上也不具有可行性。基于此,提出取消民事诉讼拘传原告制度,在原告不到庭的情况下,征询被告意见,或作出按撤诉处理或作出缺席判决的未来立法思路。

On the Interpretation about Application of ＂Civil Procedure Law of the People＇s Republic of China＂ prescribes that the court can summon the plaintiff by warrant after summoning two times on the condition that the court could not find out case facts. The prescription not only goes against relevant law principals and procedure tenets, but also cannot achieve the expectant goals. The reasons are： the litigation mode of ex officio doctrine, the concept of trial of absolutely finding the case facts, the ignorance of burden of proof and burden of claims. The system of summoning the plaintiff by warrant can be canceled; when the plaintiff is absent, the court could make judgements by default or deals it according to the action withdrawal after consulting final opinion of the defendant.