Study Of Civil Retrial

Civil Retrial System, a legal remedy after the events, belongs to the comparatively independent litigation system besides the instance system, which is compared to be the fire fighting access or the emergency exit of the principle part of legislation. It is positively meaningful in vindicating the equity of judges and effectively redressing litigants' rights. That is the reason why countries either of continental law system or of Anglo-American law system have established a remedy system to right the wrong judgment. Countries of continental law system always prescribe on the civil retrial system in monographies, in which lack countries of Anglo-American law system, however, they still have correction procedures against wrong execution.The civil retrial system currently in effect in China can be traced back to China's new Democratic Revolution Period, and is established in 1911. But affected by the planned economy, the traditional culture, the litigation theory and legislation in the USSR, it appears to have more and more disadvantages. With the development of Chinese market economy and the promotion of the reformation of democracy and legal system, the present civil retrial system is far from suitable, and what is worse, has been abused in practice. Recently, both theoretical circle and practical circle have animadverted on that, called for reformation and thought of one reformation scheme after another. It is most attractive that civil retrial system has been listed as one of the key points of court reformation. Since 2000, the Supreme Court has started up the reformation of retrial system so as to keep such phenomenon as infinite petition and infinite retrial within limits. This marked the reformation had stepped into a new phase of actual combat.Bearing this in mind, the author proposes to carry out the reformation of civil retrial system, which concentrates on the suit for civil retrial, in theoretical and practical perspective. Apart from the foreword, this paper includes altogether nine chapters, with total characters of 170,000. CHAPTER I Historical Review of China's Civil RetrialThis chapter gives a precise review of civil retrial system from the Western Zhou Dynasty to the period of Republic of China, and researches on the influence to the current civil retrial system by law systems in ancient and neoteric times. In every dynasty of ancient times, the supervision to legislative judgment and the correction to wrong legislative execution were paid much attention to, in order to ease up class contradictions and to maintain the rights of the rulers, so that there came into being a procedure of complaint, application, re-interrogation and supervision. Although the procedural regulations in ancient Chinese laws were not mature at all, the procedural system correcting wrong executions were unusually comprehensive. However, as it was only means for kings or emperors to implement supervision on government officials of various ranks, it must have been endowed with too much casualty and rule of man, which serves as the reason that leads to limitlessness of petition and unstableness of judgment. It is this conception and law system that has profound influence on the current civil retrial system. This is the cultural field where the phenomenon of infinite petition and infinite retrial root. In the late Qing Dynasty and Public of China period, German and Japanese law systems were brought in most and a comparatively mature civil retrial system was established. Though it was abolished in the mainland because of the crash of Kuomintang government, it survived and kept developing in Taiwan,which provides references for the civil retrial system reformation in themainland.CHAPTER II Crises of the Current Civil Retrial SystemThis chapter analyzes the situation and crises of the current civil retrial system and proves the urgency and importance of civil retrial system reformation.The current civil retrial system was established in 1991, when China was practicing the planned economy. Because of the political, economic and cultural environment, and the technique of legislation, it is inevitable that there are so many defects. At present, there exist many problems in the process of implementation such as infinite petition, infinite retrial, endless final judgment, difficulty in applying for retrial, conflict between the judicial part and the legislative part, the interference of external power in the name of supervision and so on. Those phenomena have ruined the society order and the order of litigation, affected the independence and authority of legislation, and resulted in great waste of society resources. In fact, the abuse of civil retrial system has driven the retrial system off the track, causing severe impact in its practice. If this situation goes on without control, the operation of the whole civil retrial system will be endangered, and even be blown up radically. The crises demonstrated above indicate that it is high time to implement civil trial system reformation. CHAPTER HI Reform Civil Trial System and Establish the Suit forCivil RetrialThis chapter discusses the inevitability, necessity and feasibility of establishing the suit for civil retrial, on the basis of analyzing the schemes that concern starting up the civil retrial procedure proposed by experts in theoretical and practical circle. This is the keystone of thewhole paper. There are three ways to start up the procedure according to the current civil litigation law in China, including that the court decides to retrial, the procuratorate lodges protests and the litigant applies for retrial. Besides, the individual case supervision proposed by the National People's Congress is actually another way to appeal for retrial. But since civil retrial procedure in China is based on the trial and supervision right, and its purpose is to supervise the action of judgment of the court, not to provide remedies for the litigant, it leads to serious immateriality of the application right for retrial of the litigant, and it is only a way for the court and the procuratorate to discover misjudged cases. Thus the current multiple ways to start up civil retrial procedure not only go against protecting the litigant's litigious right, but also encumber the authority and independence of legislation. Therefore, it is a must to abrogate the power to start up retrial mechanism of the court, the procuratorate and the National People's Congress and to establish the suit for civil retrial, so that the disadvantages of the current civil retrial system can be erased, the system can go further to be completed, and the party's litigious right can be protected. Only after there establishes harmonious relationship between the litigant and the court, can the goal of the litigation justice and benefit be realized. In addition, with ten years reformation and development, it is the ripe time to constitute the suit for civil retrial. To be specific, firstly, the development of China's market economy has built up sound base for it; secondly, the improvement of most citizens' comprehensive qualities especially like legal consciousness and droit consciousness has paved the way in mass's mind; thirdly, the reform of court mechanism and the improved qualities of judges serve as the groundwork of strong organization for the establishment the suit for civil retrial; fourthly, theexploration made by court system has provided precious experience for it; fifthly, the researches and achievements done by the theoretical circle has made rich and feasible theories to guide the reformation. CHAPTER IV General Legal Principles of the Suit for Civil RetrialThis chapter explains such basic theories as the conception, characteristics, functions, and the object of litigation.The suit for civil retrial is that when the litigant defies the executed judgment, he can require the court to repeal the judgment and re-adjudicate the case according to the law, so as to protect his civil rights and interests. The suit for civil retrial is to repeal or alter the executed original judgment; therefore, it is a kind of formational suit in procedure law. The theoretical dispute lies in its object of litigation. Some argue that the suit for retrial has two objects of litigation, while others insist that the object of litigation of the suit for retrial is the original one. Dualistic objects of litigation were dominant ideology in Germany, Japan and Taiwan, China, however, there emerge more and more scholars that are in favor of unitary object of litigation. Object of litigation is a key issue to structure of action of the suit for retrial. In fact, the theory of dualistic objects of litigation embodies the suit for retrial's phases and dual purposes, and provides reasonable theories for retrial, so it is, to some extent, rational. Yet there is many a insuperable defect of the theory itself. The theory of unitary object of litigation, on the other hand, seems more scientific and reasonable for it has not the defects of dualistic objects of litigation. Though there are two objects of the suit for retrial, its ultimate goal is to seek for a new and beneficial sentence as a remedy for oneself. Therefore, unitary object of litigation which maintains the original object of litigation is in accordance with the basic characters of suit, the purpose of retrial, and it is alsobeneficial to strike balance between justice and stability of the trial. Hence, to adopt unitary object of litigation is more suitable for the requirements of litigation system and legislation. CHAPTER V The Concept Basis of the Suit for Civil RetrialBased on the criticism of the concept basis of our current civil retrial system, this chapter brings that, during the establishment process, two notions of respecting the unchangeableness of the judgment and of the limited retrial should be built up. This is because one system must have its own concept basis. To reform the civil retrial system, we have to abandon the old concept and establish a new scientific, reasonable one; otherwise it is impossible for the reform to succeed. The executed judgment aims at maintaining the stability and authority of the judgment, while the civil retrial system realizing the equity of it, therefore, the latter is due to break down the former. Our country's over-emphasis of the real entity and the equity of the judgment, the neglect of the executed judgment, as well as little care about maintaining the judgment stability, all of which contribute to the abuse of the civil retrial system. The principle of "being practical, realistic and every wrong being righted" is the guiding ideology of legislating our civil retrial system. Although this principle has its own reasonable perspective, if it is applied to every case regardless of different concrete conditions, it is not of advantage to maintain the unchangeableness of the judgment, not conform to the purposes of the civil litigation, and against the value goal of the litigation benefit as well. Meanwhile, due to the over-emphasis of "being practical, realistic and every wrong being righted" nowadays, severe consequences are brought about in practice. Hence, when establishing the suit for civil retrial, we should build up the guiding ideology of consolidating the unchangeableness of the judgment andabandoning "being practical, realistic and every wrong being righted", strictly restricting the application of the suit for civil retrial system, and striking a reasonable balance between maintaining the equity and stability of the judgment.CHAPTER VI The Establishment of the Suit for Civil Retrial and the Reform on Trial Grading System of Civil ProceduresFrom the angle of guaranteeing the expected effect of the civil retrial system, this chapter makes self-examination on the drawbacks of the current trial grading system, and put forward a suggestion about how to improve such a system on this basis, currently, our trial grading system of civil Procedures in force has some drawbacks such as the court of last resort grades too low, the trial grading system is unitary, the supreme people's court functions disorderly and the second instance reduces to formalism, all these problems cause the low quality of cases, and the low quality of cases is an important factor of the increasing swelling of the civil retrial procedure. Therefore, in order to achieve the goal of the civil retrial system reform, we must reform the current trial grading system of civil procedures. The concrete reform measures include establishing multiple trial grading system, redefining the character and the function of the courts in four grades, and canceling the case request instruction system, only when the perfect civil procedure trial grading system is established, when the quality of cases is efficiently improved, can the civil retrial system be worthy of the name of the remedy system for "exception" and "specialization". CHAPTER VQ Institution of the Suit for Civil RetrialOn the basis of using the experience of other countries' legislation and theory for reference, combined with our own practical condition, this chapter discusses the conditions the suit for civil retrial shouldprescribe. This chapter is the core of the whole essay.In order to restrict the application of the civil retrial system, to maintain the stability and authority of the executed judgment, many countries prescribe strict conditions for the institution of the suit for civil retrial. The direct reason why the civil retrial system is abused is that the retrial condition is too loose. Hence, to scientifically and reasonably prescribe the condition of the suit for civil retrial is of advantage to not only fully maintain the retrial right of the litigant, but also prevent the action of litigation abuse; not only efficiently correct the mistaken executed judgment, maintain the equity of it, but also avoid impairing the stability of judgment for the sake of the suit for civil retrial abuse. Apart from the common essentials of litigation, to institute the suit for civil retrial must possess several special essentials as below: 1) Litigant competence. Generally, the subject of the suit for civil retrial is the litigant listed in the original executed judgment; while in some special occasions, it is the successor of the litigant. 2) The object competence. The judgment which can be suited limits into executed judgments and a few ones concerning the substantive rights of litigant. Those which could not suit for retrial are as below: the civil decision, the unexecuted judgment or verdict, interim judgment, the judgment made according to the special procedure, the judgment of marriage dissolution (except for refusing to obey the property division part), the judgment made according to public summons procedure, the judgment of non-final or of indirect concerning substantive right or of which could be remedied through other channels, and reconciliation agreement (mediation document). 3) Instituting to the competens forum according to the law. For the suit for civil retrial, the original court which made the judgment has the exclusive dominion; for the judgment made by courtsof different grade on the same case, the suit for civil retrial comes within the jurisdiction of the higher level courts. 4) Instituting within the legal time limit. The litigant should suit for retrial after the judgment executed, from the day he knew the origin of retrial for 30 days of tempus fatale. However, the litigant has not the right to suit for retrial when the judgment has been executed for more than 5 years. 5) The origin of retrial. When having one of the following origin, the litigant could suit for retrial: the judging organization is illegal; the judicial officers, clerks, identifiers, inquirer who should avoid according to the law do not perform so; the litigant is not legally represented in the suit; the litigant of one party knows the counterpart's residence while lying to the court; the judicial officers self-seeking misconduct or make judgment misusing the law when hearing the case; the attorney of the litigant, the counterpart or the third party committed a crime on which the judgment is based; the evidence on which the judgment is based is dishonest or illegal; the court decision, the arbitral decision, or the administrative judgment is altered or repealed; the judgment conflicts with the previously executed the court decision, the arbitral decision, or the administrative judgment on the object of litigation; new proof is found which might help the litigant gain a more favorable judgment; the court judges exceeding the claims or does not judge omitting them. But if the litigant has already claimed the origin of retrial by appealing or has known it but not claim, he could not suit for retrial in the name of this origin. 6) Legal retrial bill is required. The retrial bill must contain the following content: the litigant and the legal agent, the declaration of disobeying a verdict, the reason for retrial suit; the request for retrial, namely, how to alter or repeal the original verdict; following the narration and evidence during the time limit. As the suit for retrial isinstituted to the executed judgment, it would not affect the original executed judgment, and the judgment still unchangeable and executive. CHAPTER Vffl Adjudication of the Suit for Civil RetrialThis chapter constructs the trial procedure of the suit for retrial. Unless there are special provisions, the suit for retrial is applicable for different trial grade suit. The adjudication procedure is divided into two phases, accepting a case and holding a hearing. The first phase is to investigate whether the suit for retrial accords with the vested elements. If not, it must be denied. The second phase is to see whether the reasons for retrial have sound base, whether it is necessary to repeal of alter the original sentence, and how to alter. As for adjudication, a collegial panel should be set up and by principle, should hold a hearing. If reasons for retrial are not acknowledged or even if accepted, but the judgment is suitable, the suit for retrial must be denied and the original sentence is maintained; if reasons for retrial are accepted, and the original sentence indeed has some flaws, the original one should be repealed and altered. CHAPTER IX Amendment Proposal for Civil Retrial ProcedureThis chapter proposes a draft on how to reform the civil retrial procedure in China, on the basis of the opinions above.