Abstract
The law of civil procedure is generally known as the adjective law. It may be said that the historical and social character of this law is apt to be disregarded, because its highly reasonable and technical character of judging a contentious case properly, fairly, speedily and economically is emphasized.
The present writer is of opinion that it is necessary to analyze the system of civil procedure or civil trial historically and socially in connection with the social structure as a whole. The writer thinks an action should be grasped as the relation between the citizens (i. e. parties) and the state (i. e. court) through the medium of a dispute. Examining the connection between the citizen and the state in the civil procedures of modern states, phenomenally we can observe the following phases. In the first step, parties have the leadership in lawsuit, which was adopted in the French Code of Civil Procedure of 1806. The preference of parties to the court in settling a dispute and the passive and non-interventional attitude of the court are conspicuous here. The features of the second step can be found in overcoming the predomination of parties in actions and emphasizing the idea of lawsuit as the cultural subject of a nation in actions, namely, the idea of the official inquiry theory (Offizialprinzip). The Austrian Code of Civil Procedure of 1895 marked this phase. Since then an inclination to the official inquiry theory in the laws of civil procedure has gradually appeared in each country. The adversary and officialist systems in the law of civil procedure undoubtedly reflected the difference of the state and social institutions of these two countries. The former was formed as the law of civil procedure of the state which took the process of “the civil revolution from below”, one of the two courses in the formation of the modern state. The latter was brought out as that of the state which selected the course of “the civil revolution from above”.
This difference in the formation of civil states exerts a great influence on the law of crvil procedure, as is the case of Japan who took the latter course.
