Study On The Remedy Mechanisms Of The Parties’ Litigation Rights In Civil Procedure

The remedy mechanism of parties’ civil litigation rights is defined as the generalterm of functional structure, relationship and running rules of various remedies which isformed during the process of the litigant right remedy. Remedy mechanism of Litigationrights contains objection, reconsideration, appeal and application of retrial. Objectionand reconsideration which are known as the remedy during litigation, generallyoccurring in the course of the proceedings, are independent remedies of litigation rights.Appeal and application of retrial are final remedies for usually they take place after thecase decision is made, and as subsidiary means, they are applied to the remedy of bothsubstantive rights and procedural rights. The value of the remedy mechanism oflitigation rights includes protecting substantive rights, ensuring equal negotiationsbetween parties and the court, promoting parties to substantially participate in theprocess and controlling the court’s authority. In my country, it’s necessary to construct"double-track" mechanism which is dominated by independent remedy mechanism andtakes the subsidiary means as a supplement in terms of litigation rights protection.Many drawbacks have been seen in the current legislation on the remedymechanism of litigation rights. Firstly, the remedy structure is out of balance. Fewremedies in the litigant process, while redundant ones after the last instance performed.The scope of application regarding the objection and reconsideration are limited inlegislation, and lots of litigation rights can’t be protected timely in the course of theproceedings. Secondly, the allocation of the remedy is not rational. No remedies forcertain litigant rights，though some have excessive remedies，and the remedies areallocated casually，etc. Thirdly, the problem of "fragmentation" lies in the remedysystem construction. Such as the rough design of the remedy procedure and relevantrules are not consistent. In addition, the function positioning of various remedies turnsout to be unclear because of its overlap and un-exploitation; what’s more, lacking ofsystematic thought and macro-perspective has confined the means of remedy. Further,the relationship in the internal structure of the remedy is obscure, and there is nofiltering and connecting instruments among the ways of remedy. All defects mentionedabove led to a direct result of the bureaucratic remedy mechanism, the ordinaryapplication of the special remedy, enlargening remedy costs and the malfunction ofremedy mechanism.Ordinarily, a civil procedural legal system which proves to be mature must havelitigation rights remedy mechanism with complete content and rational form. As far as the operation mode of litigation rights remedy mechanism is concerned, there istwo-double–pyramid model represented by Germany and Japan, France as therepresentative of a unitary pyramid model. There are two sets of system for litigationrights remedy in the previous model. As for the latter mode, there is no orbit ofindependent remedy, so litigation rights and substantive rights share the same remedychannel.Remodeling of remedy mechanism of the litigation rights must follow theseindispensable jurisprudence, which is the basic guidelines to operation of remedymechanism, and the base of design to the remedy system, and the guidelines to litigationaction of subject. First, we must determine the remedy mechanism operating principles,including the principle of universal remedy, the principle of limited remedy, the principleof exhaustion of general remedies and the principle of proportionality remedy. Secondly,it is necessary to change the traditional concept of rights remedy in practice andlegislative, sunch as shifting from the traditional model to the cooperative system,achieving the transition from expanding litigation rights to focus on concerning aboutthe rights of remedy, attaching importance to the process of remedy shifts from a focuson the final remedy. Thirdly, it is necessary to achieve the transformation of China’sremedy mechanism operating mode. In this regard, according to the requirements of thedistinct remedy level, to build a solid remedy underside and remedy "top", and establisha two-track "pyramid" remedy system.Therefore, under the guidance of the fundamental principles stated above, it’sessential to enact a special legislation to realize formal rationality of the independentremedy mechanism, which should be established as a dominant position in civillitigation. Moreover, we must expand the application scope of the remedy mechanism,particularly in terms of the remedy during litigation including reconsideration andobjection, and the relationship between the range definition and exclusion of the remedyalso can’t be overlooked. In order to enrich the remedy arrangement, it’s necessary toclear function position of the various remedies, so as to achieve function distribution.Strengthening the procedure construction of various remedies in lawmaking, especiallyfacilitating the objection and reconsideration and determining their application scope,procedural requirements and the judicial accepting and judging mode. To avoid the splitof the various remedies, it’s necessary to clear up internal relationships and introducefiltering and connecting mechanism among various remedies.