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Study On The Suit For Civil Retrial

Posted on:2012-07-18Degree:DoctorType:Dissertation
Country:ChinaCandidate:X F LiuFull Text:PDF
GTID:1226330335957928Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
Civil retrial system, which is regarded litigation items and trial proceedings as the basic content, is very important in civil procedure law of the continental countries. The component of retrial litigation, especially conditions of retrial, directly determines the scope of the retrial, displays the compromise between the peace of judgment and the accuracy of judgment in legislature. From the amendment of the Civil Procedure Law in 2007, the practice has accumulated enough materials for the legislation of retrial proceedings. As the Civil Procedure Law is to be amended, from the points of view which include the equity of valuation, procedural safeguarding, policy choice, etc, it is very necessary to discuss the component of retrial litigation and the proceedings of retrial. The author would like to examine the merit and fault of the 2007 amendment of the Civil Procedure Law with the method of comparisons and positivism, further put forward suggestions on perfecting the system.The dissertation is categorized into seven parts.The first part focuses on the basic theory of civil retrial litigation system. In this part, it would be submitted that the retrial litigation is one kind of procedure which the appropriate litigator pleads to the court with proper jurisdiction to retry the case and relinquish or modify the former judgment by delivering a new judgment. The author would be inclined to the“unitary standpoint”on the object of the retrial litigation, and think this point of view may perfectly balance the need of safeguarding the litigators’rights and res judictor, embody the final purpose of the retrial litigation, meet the characteristics of the court power upon the examination of the retrial conditions, and avoid the complexity of proceedings.In the second part, by comparative research and categorizing different retrial objects including judgment, order, conciliation, mediation, etc, the author puts the point of view that the scope of retrial object is closely related to the valuation of the legislation, and the object of the retrial litigation is the efficient final determination without other relievers. Thus, the scope of the retrial should be reasonably limited.The third part is focused on the litigators of the retrial litigation. Firstly, the author discusses the interest of retrial, and put the standpoint that the interest of retrial is the embodiment of the litigation interest in retrial proceedings. Secondly, on the basis of discussion upon the subject scope and outspreading of res judictor, the author categories the litigators of retrial litigation. Finally, how to build up the relinquishing litigation by the third party is discussed, and relative suggestions on legislation is put forward.The forth part is upon the period of the retrial litigation. By the method of comparative research and positive analysis, the author puts forward her general idea about perfecting the period of the retrial litigation, by the way of distinguishing the term of exploring the retrial actio and the term of the actio duration, changing the criteria of calculation, and adding exception regulation.The fifth part is on the jurisdiction of the retrial litigation. By the method of comparative research and positive analysis, the author puts forward her fundamental idea about perfecting the retrial jurisdiction system, fully exerting the function of the original trial court on resolving disputes, concerting the relations about the retrial initiated by the court’s power, the protest of the people’s procuratorate and the higher court examining the plead of litigator. Also, the author puts forward relative suggestions upon these issues.The sixth part is on the retrial items. Firstly, the content, characteristics and component of the retrial items are discussed. Secondly, the author discusses the categorization of the retrial items by comparative research. Finally, relative suggestions are put forward on the basis of positive analysis. On the author’s view, the basic way of perfecting the retrial system is on the basis of building up complementary principles of retrial, to ascertain the determination criteria of substantial retrial items. The seventh part is focus on the trial and determination of the retrial litigation. Firstly, the author analyses the start proceedings of the retrial litigation, the trial stages and the way of determination. Secondly, on the basis of positive research, the author puts forward perfecting suggestions. The author’s general standpoint is that to construct the retrial proceedings according to the three phases theory fits the characteristics of the retrial litigation and is propitious to the safeguarding litigators’rights.In the final part, the author puts forward the suggestion draft upon the amending retrial proceedings for legislation and relative illustrations of the reasons.
Keywords/Search Tags:The Suit For Civil Retrial, The Conditions Of The Suit For Civil Retrial, The Civil Retrial Item, The Civil Retrial Procedure
PDF Full Text Request
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