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：201222010105

School of Law

Henan University of technology

Supervisor: Du Qiaoge

December31, 2014

On the Civil Procedure in the United States

Civil 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 States

Early 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 an

increasing 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.