| The civil retrial procedure is an important part of the Civil Procedure Law,which undertakes the procedural safeguard function of correcting errors and validating judgments and maintaining judicial justice.It is of great significance to the people in pursuing the justice of individual cases in legal procedures.From 1978 the Third Session of the Eleventh Central Committee of the Party began,the pace of reform and opening up has crossed forty over years.During the forty years of reform and opening up,with the reform of the country's economic system,as well as the transformation and transformation of society,new situations and new problems continued to emerge,and civil disputes increased,which promoted the continuous development of the Civil Procedure Law.The relevant provisions of the “trial supervision procedure” have also been gradually revised and improved.From 1982 only four provisions of "Civil Procedure Law(Trial)" in the,the 1991 annual comprehensive repair "Civil Procedure Law" of change,2007 in order to solve the "Difficulty of Complaints","apply for a retrial difficult" for the purpose of the legislation supplement,to 2012 years of comprehensive improvement,China civil retrial four decades' rapid development.The development process of the civil retrial system is the epitome of the development process of China's legal system.Therefore,it has important practical significance to analyze and study the civil retrial system,especially the evolution of the system since the reform and opening up.This article takes the civil retrial system from 1978 to2018,from the perspective of legal history,starting from reform and opening up,and taking the previous revisions of the Civil Procedure Code as the time node,the research is divided into four stages.Through combing and analyzing the system development and judicial practice of the civil retrial system at various stages,we can grasp the legislative intention and the process of improvement;the full text focuses on the three participants in the civil retrial procedure: the court,the procuratorate,and the parties,and analyzes their respective civil retrial procedures.The evolution of rights(powers)in the retrial system reveals the development characteristics of the civil retrial system,so as to clarify the development context of the system,summarize judicial practice experience,and provide ideas for future system reforms on this basis.In addition to the introduction and conclusion,this article is divided into five chapters.The introduction chapter introduces the system content during the embryonic and establishment period of the civil retrial system.When the new democratic revolution period is infancy current retrial system in China.In this period,the attempt to legislate the retrial system laid a legal foundation for the formation of the current retrial system in our country,which was the embryonic form of the modern retrial legal system.The right of prosecutors to protest at that time was the embryonic form of our country's current prosecutors' protest system;Maxi's fifth trial method,court review and trial and other corrective mechanisms have gradually formed the principle of “correction if there is mistakes”;workers' right to sue and appeal is a citizen's appeal in the current constitution The traceability of rights.After the founding of the People's Republic of China,with the promulgation of a number of court organizational laws,the court's decision-making retrial power was formally established,and its content has been expanded from being limited to the Supreme People's Court having the power to initiate retrials ex officio to the court having the power to initiate retrials ex officio through multiple channels;new During the Democratic Revolution,the prosecutor's absolute right to protest against retrials was clearly stipulated.This is the source of the prosecutor's right to protest in the current civil retrial system.After the founding of the People's Republic of China,this power was evolved into the right of protest of the People's Procuratorate,and later the right to protest by the Procuratorate.However,the right of the parties to apply for a retrial of an effective judgment has not been established.In 1931,the "Interim Organizational Regulations for the Court of the Workers and Peasants' Procuratorate" stipulated the workers' and peasants' right to sue,and the “Common Program” introduced the content of the right to sue.Expand and gradually evolve to the citizen's right to appeal as stipulated in the current constitution.Subsequently,due to the outbreak of the Cultural Revolution,the construction of the legal system was forced to stop,and China's civil retrial system also entered a period of stagnation.Until the Third Plenary Session of the 11 th Central Committee of the Communist Party of China in 1978,under the new policy of reform and opening up,the construction of the national legal system entered On the right track,China's civil retrial system has also entered its infancy.The first chapter introduces the development and practice of the civil retrial system since the promulgation of the Civil Procedure Law(Trial method)in 1982.Driven by the concept of the rule of law,the construction of the legal system was restored,and the legislative work of the civil procedure law was retried.In the context of these legal system constructions,with the promulgation of the Civil Procedure Trial Law in 1982,the civil retrial system was formally unified by legislation and entered the initial stage of development.However,due to the influence of the reform and opening of the primary planned economic system,the idea of nationalism,and the legislative ideas of socialist countries such as the Soviet Union,the civil retrial system at this stage presents a retrial model dominated by the court's exercise of trial supervision power on behalf of the country.Decided to expand the power of retrial;the procuratorate's right to protest has not been expressly confirmed in the Civil Procedure Law,showing a state of "losing power";although the party's right to appeal against an effective wrong judgment has been established,it is in vain.The implementation effect in judicial practice is not good,and the pressure of the courts to handle cases has increased sharply,the prosecutors' right to protest is not guaranteed,and the parties' "difficulty in appealing" phenomenon is prominent.The second chapter introduces the development and practice of the civil retrial system since the promulgation of the Civil Procedure Law in 1991.With the transformation of the economic system,the civil litigation system at that time could not fully meet the needs of the market economy;the advancement of judicial system reform,the needs of judicial practice,the accumulation of research results and practical experience,made the conditions and timing for the formal promulgation of the civil procedure code Gradually mature.In the context of these social developments and the construction of the civil procedure legal system,the civil retrial system has entered a comprehensive revision stage.With the continuous enhancement of people's legal consciousness and the deepening of reforms in civil trial methods,in the pursuit of modern legal concepts,the revision of the civil retrial system at this stage is based on the basic route of reforming the court's over-power to determine retrial power to resolve "difficult appeals." "Appeals abuse" and other practical difficulties are the goal.In terms of system changes and development,the main manifestations are the weakening of the court's decision to retrial,the codification of the prosecutor's right to protest,and the establishment of the party's right to apply for retrial.However,due to the influence of Soviet judicial ideas,inadequate legislative experience,and various conflicts of interest brought about by social transformation,the results of the implementation of the civil retrial system at this stage are far from satisfactory,and the courts have dealt with letters.The number of visiting cases continues to increase,the procuratorate's excessive use of the right to protest has emerged,as well as the continued dilemma of "difficult retrials" and "indiscriminate retrials" by the parties.The third chapter introduces the development and practice of the civil retrial system since the Civil Procedure Law was revised in 2007.With the rapid development of the country's political economy and other aspects,civil disputes are increasing,and the public's legal awareness continues to increase,and the demand for judicial relief is increasing.The civil retrial system that has fallen into disrepair has been unable to meet the judicial needs of the masses,people's courts,procuratorates and other parties.Under the guidance of judicial reform policies,the civil retrial system has entered a supplementary stage.The civil retrial system at this stage relies on the establishment of a litigation system for parties to apply for retrial.Through a series of amendments,it focuses on solving the problem of the parties' "difficulty in retrial" and allows the content of the civil retrial system to be supplemented.In terms of system changes and development,it is mainly manifested in the standardization of court decision retrial procedures,the expansion of the prosecutor's power to protest,and the refinement of the parties' application for retrial.However,due to the influence of Soviet judicial philosophy,the failure to plan judicial reform tasks reasonably,and the lack of legislative experience,the civil retrial system at this stage has certain shortcomings.Contradictions and conflicts in relevant regulations make the system The effect of the implementation of the law did not achieve the expected results.In judicial practice,there have been difficulties in the judicial practice that the pressure on the higher courts to handle cases has increased,the prosecutors' overuse of the power of protest is serious,and the parties' "retrial abuse" has intensified.The fourth chapter introduces the development and practice of the civil retrial system since the Civil Procedure Law was revised again in 2012.With the deepening of reform and opening up and the modernization of the legal system,revising the Civil Procedure Law and improving the civil retrial system have become one of the important tasks for improving the socialist legal system with Chinese characteristics.The judicial system reform in the new stage puts forward new requirements for improving the civil retrial system;The revision of the Civil Procedure Law provides an opportunity for the improvement of the civil retrial system.At this stage,the goal is to comprehensively summarize practical experience and comprehensively improve the content of the system.In terms of system changes and development,the main manifestations are that the court's decision is guaranteed in the application,the legal supervision power of the procuratorate is strengthened,and the party's right to apply for retrial is standardized.In the "Civil Procedure interpretation" of the full complement of regulations under norm at strengthening legal supervision concept,under the impetus of the judicial system of the court,the effect of the implementation phase of the civil retrial system had improved compared with before,mainly for court,The procuratorate's public power disputes have been eased,the state and society's public interests have been protected,and the parties' "difficulty in retrials" and "indiscriminate retrials" have eased.The fifth chapter is mainly thinking about the development of our country's civil retrial system since the reform and opening up.There are three parts.The first part of the first Russia-based civil retrial system has similarities with the civil retrial system in China,so the 1978 development features Civil Retrial China and Russia since been compared,summed up the civil retrial system in China since the reform and opening up unique The development characteristics of the court: the retrial power determined by the court according to its authority is stable,the prosecutor's office continues to expand the power of protest and retrial,and the party's right to apply for retrial is "Chinese-style" litigation rights.The analysis points out that the reason is that the development of the civil retrial system in China is the development of the system under the traditional Chinese judicial concept,the development of the system under the long-term constraints of the Soviet model,and the development of the system under the road of socialist rule of law with Chinese characteristics.With Chinese characteristics.The second part analyzes the mutual influence between the research of our country's civil retrial system and the development of our country's civil retrial system since the reform and opening up.After each revision of the civil retrial system,the changes in the status of the subject power(rights),the contradictions and conflicts between them,the defects and causes of the system,etc.,have become the guiding card for the direction of academic research,guiding the pace of academic inquiry by scholars,Thus directly affecting the number of results of different research contents,and related research results have played an important role in the development of my country's civil retrial system.The third part is the thinking about our country's civil retrial system.Responding to the academic circles about the court's decision to retain or abolish the right of retrial according to its powers,and the procuratorate's lawful exercise of the right of protest.At the same time,it also considered the reasons for the parties' "difficulty in retrial" and "indiscriminate retrial".And the conclusion is,the possibility of a short time to complete a thorough transformation of the parties the right to appeal is very limited,for now,courts,procuratorates,as the main parties to the civil retrial procedure,the powers(rights)and status are irreplaceable.We should give full play to their respective roles and actively carry out the "socialization" transformation with Chinese characteristics.It should include specific measures to enhance the credibility and quality of judges,civil prosecutorial supervision precise development,improve the party applies for retrial and related systems and so on. |
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