Civil Retrial Procedure

The topic of this dissertation is civil retrial proceeding (Wiederaufnahme des Verfahrens) . The whole thesis is composed of 7 sections.In the Introduction section, the author draws a panoramic sketch of China's current civil trial supervision proceeding. Then, the section thoroughly shows various kinds of defects as well as problems induced by that retrial system. Within this part, author also clearly explains the usage of several research and study methodologies in the whole works. As its contents show, this dissertation should be considered to be one of the static juridical studies, rather than the fresh field researches of legal developing trends. The main focus of this work concentrates on the ideal reconstructing civil retrial's institutions as well as its jurisprudence.In Chapter one, author firstly explains a few conceptions concerning to civil retrial. Secondly, to the theoretical matters of legal suing capacity and subject matter in civil retrial proceeding, after systematic expounding, he draws some unique academic conclusions. Such as: (1) the petition of retrial should also be deemed as an action of utilizing legal suing capacity; (2) the legal suing capacity of retrial actually results from a specific civil dispute, not from any so called "civil procedural relations". Generally speaking, the legal suing capacity actually derives from a civil dispute, which presumptively has been settled legally, but was still there waiting final juridical resolve; (3) in each civil retrial, there exits only one subject matter of action (Der Streitgegenstand ) , which is the actually unsettled substantial dispute in the former trial proceedings. According to the exercising limits of party's disposition rights, the scope of retrial's subject matter could small than or equal to the extent of the original subject matter, but can never larger than the latter's extent. As the objective of interlocutory judgment (Zwischenurteil) , those legalized reasons in the civil procedural code shall not be considered as "the second subject matter" in civil retrial. More or less, it can only be deemed as some kind of "procedural rights protection essences". Furthermore, this Chapter also contents these matters as sorted below: the exclusive jurisdiction of retrial, the suing essences of retrial, procedural essences of retrial, subjective and objective extents of civil retrial, etc.In Chapter two, at the first hand, author examines the subtle relationship existing between the sequencing of procedural values and civil retrial proceeding. As it clearly stated, one of the important prerequisites for activating retrial proceeding is: the results(the individual substantial justice) contained in the valid judgment apparently inferior to the standards stipulated by the civil code(the common substantial justice ). The perceptual or empirical equitable ideas of civics can not be discerned as legalized reasons to recommencing the civil trial. At the second hand, author spent quite some time to explore the realm of legal history, he thoroughly analyzes the profound connections between following elements: today's chaotic phenomena of unlimited judgments' reversing, the traditional "trialing by persuasive preach", "the institution of unlimited legal repudiation",advanced system of dialectical law as well as atheism traditional existing in ancient Chinese culture. Consequently, author draws some original academic conclusions. Such as:(1) in classic Chinese society, people paid more attention on how to specifically solve a problem than how to rigidly maintain the stability or authorities of a judgment. The overwhelm ideas of advocating tactics will surely make bureaucratic judgments unstable;(2) most developed theories of dialectical law and profound atheism certainly can not turn those bureaucratic judgments mentioned above into Hegel's "objective spirits" or prestigious "legal oracles". (3)in classic society, unscrupulous petitions of civics was one of the most effective means to restrain the almost unbridled bureaucratic powers. However, in prese...