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Rethinking And Reconstruction Of The Civil Retrial System Of Our Country

Posted on:2006-05-16Degree:DoctorType:Dissertation
Country:ChinaCandidate:L W ZhangFull Text:PDF
GTID:1116360182456958Subject:Legal theory
Abstract/Summary:PDF Full Text Request
The civil retrial system of our country formed on the basis of borrowing ideas from the procedural system of former Soviet Union, affected by traditional Chinese legal culture. The system, taking the guidelines of "seeking truth from facts and correcting all wrongs,"and built based on the doctrine of function and power, has increasingly shown that it lags behind in the process of the conversion of Chinese economy to market economy, causing the tension and conflict between the legislative organ and the adjudication organ, between the prosecutorial supervision power and the final adjudication power, between the citizen's right of petition and the judicial function and power, leading to the serious consequence of the loss of finality of judgment in the judicial practice in our country. So the main objectives of this paper are to reveal the basic doctrina of the retrial system, analyze the existing problems and their sources in the retrial system and provide the theoretical basis for the reform of the retrial system. This paper that is divided into seven chapters makes a serious, in-depth discussion and study of the retrial system. Chapter One The basis of the retrial system—the doctrinal explanation of res judicata. The author first analyzes the function, justifiability and values of res judicata. In the Western legal states, in order to make effective judgments obtain the stable finality, the res judicata system was established. The core intension of res judicata, taking the theories of procedural justice preceding substantial justice and the legal reality preceding the objective reality and the protection of basic human rights as the theoretical basis, is that it not only forbids the party concerned to bring multiple actions for the same case but also forbids the court to make multiple contradictory judgments on the legal relation finally awarded involving the same subject matter of action. The function of res judicata lies in inducing the formation of the legal space and the legal order and the legal space has an important significance for rule of law. The principle of the justifiability of res judicata lies in the national institutional force, procedural guarantee and the concerned party's self responsibility. The value of res judicata lies in maintaining the legal justice, efficiency and order of law and further maintaining a nation's rule of law. On that basis, the author further analyzes the relations between res judicata and the retrial system. Based on the requirements of maintaining the authority and stability of effective judgments, in Western countries, the retrial system is constructed based on res judicata, with a strict control of the condition, time limit, number of times and validity to start retrial. The tenet of establishing the retrial system is the pursuit of the justifiability of res judicata. Res judicata and the retrial system that are symbiotic and complementary safeguard the judicial authority together. It makes an in-depth discussion of the principle of res judicata and the relation between res judicata and the retrial system in Western countries, which has a very impotent significance for the determination of the basic theoretical framework for the reform of the retrial system in our country. Chapter Two The assessment and analysis of the current civil retrial system of our country. The author first analyzes the historical origins of the civil retrial system of our country and its cause of formation. In the long historical process of the development of China's legal system, in the feudal system in which all kinds of laws were integrated and the civil case and criminal case were not distinguished, judicial error correction had always occupied an important place. In order to prevent and correct wrong judgments, in ancient Chinese dynasties, several kinds of judicial remedy mechanisms such as "appeal,""appeal and retrial,""direct appealing,""censor supervision"and others had been established and applied gradually. The ancient Chinese judicial error correction system and the values behind it had a larger effect on the establishment of the civil retrial system and the formation of its mode in modern China. The author then makes a comparative analysis of the implication of the trial supervision procedure and the retrial procedure. The trial supervision procedure is based on the foundation ofplanned economy and the doctrine of national function and power and implements the idea of "seeking truth from facts and correcting all wrongs,"while the retrial procedure is based on market economy and the principle of party and implements the standard of res judicata, with an essential difference between them. Finally, the author makes an assessment and analysis of the problems and their cause of formation in the existing retrial system: power conflict within the constitutional government framework, the supervision of the individual case by the people's congress leads to suppression of adjudication supervision over independence of adjudication, finally destroying the legal justice; conferring the power upon the court and the procuratorate to start the retrial procedure according to their function leads to an infringement of the concerned party's right of action and right of disposition while at the same time causes conflicts and intensions between the prosecutorial supervision power and the final adjudication power; and immaterialization of the concerned party's right to start retrial. The establishment of the citizen's right of appeal in our country's Constitution has a strong administerized feature. Such an administerized allocation of power leads to contradictory situations in which "the final court judgment is not final"and "there is no way for the concerned party to appeal in some cases"; impact of retrial on the trial grade system; imperfect design of the specific retrial system, too excess retrial causes, too simple retrial procedure, "single ordered"examination of the retrial cause, defect and others. The causes of formation of the problems in our country's existing retrial system are: unbalance of value selection, the influence of traditional procedure concepts based on the planned economy system and the principle of national standard, the influence of administerization of the court and the influence of traditional Chinese legal culture. Chapter Three The overall idea of the reform of the retrial system of our country. The key to the reform of the retrial system of our country lies in concept update, theory conversion and system reconstruction. Concept update means abandoning the diea of "seeking truth from facts and correcting all wrongs,"and establishing the idea of taking res judicata as the standard, and the core is to establish the idea of procedural justice, procedural rigidity andprocedural stability, so as to safeguard the finality of the judicial award. Theory conversion means abandoning the foundation of the doctrine of function and power for starting retrial and laying the right foundation of the retrial system with the concerned party's right of appeal and right of disposition; specifying clearly that remedy of the concerned party's right is the real need of the retrial system; power restriction by right is the inherent necessity in the design of the retrial system; and remedy according to law is the inherent function of the retrial system. For the reconstruction of the retrial system, the author first makes an analysis of the constraint condition for the reform of the retrial system. The theory of res judicata emerged in the Western countries in which the legal system is well developed, so when we reform the existing retrial system of our country based on that theory, we must consider the historical and cultural tradition and the real development stage in our country because it will unavoidably affect the ability of our society and citizens to bear and understand a new legal system and the viewpoint of mechanical copy of the Western mode is inadvisable. On that basis, the author puts forward the principles that should be followed in the reform of the retrial system: judicial independence, judicial power restriction, unified planning and coordination and following in order and advance step by step. Finally, the author puts forward the path to the reform of the retrial system: relying on power supervision by right; relying on the organizing ability of the procedural system itself to weaken the environmental pressure from the outside of the system; changing the one-way "supervision"mechanism and replacing it with an "interrestriction"mechanism; dividing the different applicable scopes of the supervision mechanism aiming at right remedy and that aiming at maintaining the public legal order; and strengthening the professional development of judges. Chapter Four The reform of the subject of starting civil retrial. There exist problems in the current system basis for the subject of starting civil retrial in our country, showing the unintegration of the nature of civil procedure from the basic principle of civil procedure in both the procedure design idea and the system basis, reflecting the intension and contradiction between the concerned party's right of appeal and right of disposition and thetrial supervision power. To build the retrial system in which the nature of civil procedure complies with the basic principle of civil procedure, the intension and contradiction between the concerned party's right of disposition and the trial supervision power are eliminated and the need of the effective judgment can be met, the court's right to start retrial must be annulled, the procuratorate's right of civil protest must be transformed and the trial supervision by the people's congress and other organs should be standardized, and the current trial supervision system should be replaced with retrial appeal. The goal of the conversion of the basic mode of civil procedure of our country is the mode based on the principle of party. The implementation of the principle of disposition as one of the basic principles of the mode based on the principle of party is the basic drive for realizing the replacement of the foundation on which the system of the subject of starting civil retrial is built. The author first analyzes theoretically and practically seven harms in starting retrial according to function and power and the system design of annulling the court's power to start retrial according to its function and power and then describes the reform of the civil protest system. The prosecutorial power essentially is not the legal supervision power and its duty positioning at the theoretical level is only an accusation power. The author, through an analysis of the origin of the prosecutorial power and its development and function positioning in the two major law systems, thinks that the development history of the prosecutorial power essentially is the evolution history of the accusation function and power and its core or essence is the right of public prosecution; the essence of the legal supervision power determines that the supervision over the court by the procuratorate has no justifiability; the independent exercise of the judicial power rejects the supervision and interference from outside involving the specific disposal of a case during procedure. The way out to the reform is from technical improvement to system innovation. The author further analyzes the reasonable positioning of the supervision power of the legislative organ over the judicial organ. The supervision by the people's congress over the judicial organ should be strictly distinguished from the direct interference in the disposal of an individual case; the supervision by the people's congress is mainly to strengthen supervisionover judicial persons and acts, especially with the selection and appointment, security of profession and act of judges as the main; the people's congress should promote and guarantee judicial independence with judicial democracy. The author also describes how to better handle the relations between the political party and the judicial organ and guarantee the independence of the judicial organ. Finally, the author puts forward the specific system design of the subject of starting retrial. Chapter Five The reform of the examination procedure for the civil retrial cause. The current legislation of our country has not set the procedure norm for the court how to "make an examination"of the appeal, application for retrial by the concerned party, with a shortage of legislative guarantee of the concerned party's right of application for retrial, leading to random, cursory and disordered dark-box operations due to inexistence of the procedure, norm or basis for the examination of the concerned party's appeal and application for retrial. This paper makes an analysis of the current reexamination procedure for appeal and application for retrial. Although the reform of the judicial department has made progress, increasing the transparency of reexamination to a certain extent, it remains within the existing legal framework and has not solved at the root the problems in the current system of appeal and application for retrial. Finally, the paper gives the legislative conception of establishing the examination procedure for the retrial cause. It first raises the issues to which attention should be paid in the establishment of the examination procedure for the retrial cause: determination of the status in litigation of the examination procedure for the retrial cause; proper understanding of the nature of the concerned party's application for retrial, turning the democratic rights of citizens to the litigious right, and adequately guaranteeing the concerned party's litigious right; scientific arrangement of the structure of the retrial procedure. Then it puts forward the specific design scheme for the examination procedure for the retrial cause of our country. Chapter Six The reform of the civil retrial cause. The juridical practice in our country has shown that shortage of clear retrial cause or improper or excessively generalized specification of the retrial cause will lead to adisordered start of the retrial procedure, endangering the procedural stability. Therefore, in the process of the reform of the retrial system of our country, the norm of the civil retrial cause is extremely critical because it determines the basic direction in which the retrial system is reconstructed. The author first analyzes the principle of determining the boundary of res judicata and the retrial cause. According to the doctrina in Western countries, the legal stability requires that res judicata of the effective judgment must be maintained, but if it is maintained no matter how great the defect of the effective judgment is, it will make the judgment lose its authority. In order to mitigate this contradiction, the great defect can be regarded as the retrial cause and the retrial can be started. But what is the great defect? The author describes the two theories—the "theory of encroaching on national authority"and "theory of procedural guarantee of great defect."The basic principles of determining the retrial cause in Western countries: the binding power of res judicata shall be based on justification; the state shall provide an adequate procedural guarantee of litigation of all parties concerned, once the judgment comes into force as a result of this guarantee, the losing party shall be responsible for the result and the winning party trusts it and the stability of the legal status will be respected. However, when there exists a significant defect cause in the basis of effective judgments that cannot be attributed to the responsibility of the concerned party, res judicata will lose its basis, and this cause is the retrial cause. The author further describes the issues to which attention should be paid in the reform of the civil retrial cause of our country: the legal retrial cause shall be clear; the definition of the retrial object shall be scientific; whether all the judgments or awards infringing the procedural rules are regarded as the trial cause should be considered with discretion. Finally, the author makes a detailed analysis of our country's reform of the civil retrial cause and puts forward clear and definite reform scheme. Chapter Seven The synergistic reform of the retrial system and the trial grade system. The retrial procedure is the afterthefact remedy or "redemption"mechanism established for correcting the wrong judgment that cannot be corrected in normal ways after it comes into force and only the exceptional "property"and the "fire fighting"characteristic are retained, canit not impact the basic trial grade structure. The trial supervision procedure of our country, however, is established as a substitute procedure for the trial of third instance, so the afterthefact remedy function of the trial supervision procedure makes it become a guarantee of or even a precondition for the operation of the final judgment system and the whole trial grade system is established based on the dependence on the exceptional or remedial procedure. There exists a so close relation that cannot be divided between the trial grade structure and the trial supervision procedure in both the design principle and the operational process: at the beginning when the trial grade system was built, the procedure of the third instance was abolished with dependence on or guarantee by the trial supervision procedure as one of the preconditions; in the operation of the trial grade system, there exists a cause-effect relationship between the shrink of the appeal function and the hyperfunction of the trial supervision procedure; as a result of the operation of the trial grade system, the number of the case of appeal and the case of retrial is on the increase, showing the concerned party's dissatisfaction with the final judgment. The "error rate"of the final judgment should become the window showing the fundamental defect in the whole judicial system of our country. Because of the above system dilemmas existing in the establishment of the trial grade function for the procedure of second instance, it is difficult to form a function-graded power restriction mechanism between the upper and lower levels, so the designer can only establish the power control system after procedure and outside the trial grade system, but the judicial system with unsound restriction mechanisms within the procedure leads to higher error rates, therefore it is easy to understand the expansion of the application of the remedial procedure. When the use rate of this "exceptional"system increases to a certain amount, the qualitative change will take place in the trial grade system, or it will not be the "system of the court of second instance being the final instance"any longer. On the basis of the above theoretical analysis, the author analyzes the principle of the construction of the trial grade system and its function and the basic idea of eliminating the reliance of the trial grade on the retrial and reconstructing the trial grade system of our country.This paper not only makes a all-round, penetrating analysis of the problems existing in the current retrial system of our country, but also makes a study of the basic doctrina of establishing the modern civil retrial system, puts forward the idea of the "gradual"reform of the retrial system of our country in the future, which complies with the conditions of our country, makes an in-depth discussion of the main issues involving the reform of the retrial system and makes legislative suggestions. Therefore, the paper will play a positive role in the reform of the retrial system that is being carried out in our country and in the amendment of the Organic Law of People's Court, the Organic Law of People's Procuratorate, the Civil Procedural Law and even the Constitution.
Keywords/Search Tags:Reconstruction
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