Legal Terms in Procedural Law
There having a lot of synonyms is legal terminology’s feature. If we don’t know the distinctions between them, we’ll have difficulties in applying them. So it is necessary to learn some contexts where a legal term is applied. Additionally, English is widely used in the world and is a lot of countries’ native language, but, to some degree, each country has a different English vocabulary, and especially in usage, there are even divergences between different countries’ vocabularies.
Therefore it is also necessary to learn some regional differences of legal terminology, that is, for different country’s readers, we apply a different term which they usually apply in the same context as we do. The following are some legal terms in procedural law.
Ⅰ. The Group of Terms Belonging to“Litigant”
A litigant is a party to a lawsuit or someone involved in litigation, including the plaintiff, claimant, complainant, pursuer, defendant, demurer, petitioner, etc. A plaintiff is someone who brings a civilaction to a court of law and seeks damages from the counterparty and/or an injunction to stop the counterparty from doing certain activities. If successful, the court will issue a judgment in favor of the plaintiff and/or make orders,e.g., an order for damages.
A plaintiff is also referred to as a claimant, a complainant, or pursuer.In England and Wales, the term Claimant has replaced Plaintiff after the Civil Procedure Rules 1998 came into force on 26 April 1999. In Scottish law, a plaintiff is referred to as a pursuer. In Hong Kong and the United States, the legal term “plaintiff” is still in use.
Americans traditionally limit the application of terms such as “claimant” and “claim form” to extrajudicial process in insurance and administrative law. After exhausting remedies available through an insurer or government agency, an American claimant in need of further relief would turn to the courts, file a complaint (thus establishing a real court case under judicial supervision), and become a plaintiff.
Not all lawsuits are plenary actions, involving a full trial on the merits of the case. There are also simplified procedures, often called proceedings, in which the parties are termed petitioner instead of plaintiff, and respondent instead of defendant. There are also cases that do not technically involve two sides, such as petitions for specific statutory relief that require judicial approval; in those cases there are no respondents, just a petitioner.
A defendant is the counterparty against whom a plaintiff institutes a lawsuit and who is required to answer the plaitiff’s complaint and tries to prove that the causes of the plaintiff’s action are insufficient so his claims are groundless.
A respondent is a legal term parallel to a defendant and used in a lawsuit commenced by a petition. In Scotland, a defendant is also termed as a defender.
Usually the term defendant can be used in civil actions and criminal cases as well. In Scotland, however, “the accused”, “panel” are used instead of “defendant”.
Most often than not, defendants are persons, natural persons or legal persons, under the legal fiction of treating organizations as persons. But in certain cases, defendants may be objects, which is quite different from the provision of China’s procedure law.
An appellant is a person who appeals against a decision made in a court of law. If a party to a lawsuit thinks that a decision made by a court is erroneous or there are errors in the process of making the decision, the party may file an appeal with the next higher court or the same court for review of the lawsuit. If successful, the lawsuit could be reconsidered and the decision may be changed.
An appellant is also called a plaintiff in error, a petitioner, a pursuer, and a party on the other side is called an appellee in the US, a respondent in most common law countries, a defender under Scots law, or a defendant in error
Ⅱ. The Group of Terms Belonging to “Pleading”
A pleading is a formal written statement filed with a court by a party ,to make clear of the party’s claims or defenses, thereby establishing the issues to be adjudged by the court. A complaint is the first pleading filed with a court by a plaintiff who starts a civil lawsuit.
It usually contains the allegation of facts which provide reasons for the litigation, and a prayer for relief.In some circumstances, the first pleading is called a petition, the party who files it is addressed as a petitioner, and the counterparty is referred to as respondent. In equity, the first pleading is chancery, the initial pleading is called either a petition or a petition of complaint in chancery.An appeal is a petition filed with an appellate court.
In England and Wales, according to part7 or party 8 of the Civil Procedure Rule, the first pleading is referred to as a Claim Form, which set forth the nature of the lawsuit, set out the relief sought,and sometimes may give brief particlars of the claim. And the term complaint refers to a mechanism used in magistrate court to initiate civil proceedings and may be either written or oral.
A demurrer is a pleading filed by a defendant to evidence the insufficiency of the plaintiff’s complaint. An answer is a pleading filed by a defendant to admit or deny allegations set forth by a plaintiff in his complaint. This constitutes a general appearance of the defendant. The equivalent for this term in England and Wales is a defense.
An appeal is a petition filed with a court of appeals for reconsideration of a previously adjudged lawsuit or a case.
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