The Research On The Control Mechanism In Remand Of Civil Cases

In judicial practice, the remand system plays an important role in protecting thelegitimacy of the trial, maintaining a different division of functions in trial-levelcourts and protecting the trial-level interests of the parties. Despite the remand systemhas its own unique existence, as a waste of the original decision of the most extremeway, remand is a high cost, long process of First Instance, the overall efficiency is lowand easy to create tired of First Instance of the second trial the parties closed way.Moreover, the remand of the cause of the damage stability program, the program is nota direct consequence of the stability of the litigation between the parties rights andobligations due to lack of a final court decision is not clearly confirm the status of thejudicial authority is difficult to establish. In this sense, remand the application in civilproceedings should be strictly limited. Two Schools for the remand of this "extreme"cases by the way have adopted a cautious, limited approach. Such restrictions arereflected in the legislation, mainly in the following three aspects: First, strictly limitthe remand subject; second is desirable to give the parties choose to appeal the trialcourt commuted the right to direct; third is to give the waste back to the decision to bebinding, Court to prevent a retrial on their own stubborn views, making the differenceswith the superior court judge, resulting in two court cases from the litigationcontinued between waste. Remand provisions subject anomie, lack of controlmechanism, leading to inadequate procedures remand rate in China has been at a highlevel. In addition, the remand system in practice, also show the followingcharacteristics: First, the case back to trial court re-trial, the new trial court’s decisionis consistent with the high proportion; Second, remand the case again a higherproportion of appeals. We need to regulate the subject of remand, remand the sciencebuilding control mechanism to reduce the chances of abuse remand. Specifically, onesubject in remand, and to eliminate "the fact is unclear, evidence insufficient," thestandard, on procedural grounds, should be "the first instance has a major flaw," as thestandard remand,"the new evidence "there should not be any reason to constitute astatutory remand. Second, a higher court ruling on back and the constraints of thelower court, the parties to the higher court’s control mechanism. Remand the case inthe trial of organizational issues on retrial the court should be formed a collegiatebench retrial retrial the court ruling, an appeal against, appeal, appellate court made the original decision to sit back do not need to avoid. Remanded for retrial system isreasonable, but there was abuse, should establish appropriate mechanisms for theproper use of the constraints.