Research On Reconsideration System In Civil Procedure

The reconsideration system in civil procedure is a procedural relief system which is originally created by China.It is a legal system that the parties or other interested parties are not satisfied with the ruling(such as ruling,decision,etc.)made by the people's Court on specific procedure matters in civil proceedings.In order to safeguard their rights and interests,the parties or other interested parties apply to the people's court or the people's court at the next higher level for re-examination and make the ruling according to the law.It has important theoretical and practical significance for protecting the litigants' litigation power,restricting the judicial power of the court,reducing the cost of litigation,improving the efficiency of litigation,realizing the procedural justice and maintaining the judicial authority.However,it has not been paid attention to by the legislation,judicature and theoretical circles of civil procedure.There are few provisions on reconsideration system of civil procedure in legislation.The legal status is difficult to highlight because of its simple,scattered and arbitrary provisions.In judicial practice,there are few and narrow application of reconsideration system in civil procedure,and the different ways of review make the practical function of the system difficult to play effectively.The theoretical research on reconsideration system in civil procedure is still very weak,so far,no research on civil litigation reconsideration has been conducted.Some researchers even think that the reconsideration system in civil action originated from the administrative reconsideration system,which is an administrative relief means.It is improper to put the name in the civil procedure law and advocates the abolition.As a unique judicial relief system in China,the system of reconsideration of civil action has remained for nearly 30 years.Whether it has the value and space of survival or not is an important issue that the author has been thinking about.It is also the reason why the author chooses the reconsideration system in civil procedure as the topic of his doctoral thesis.In order to give full play to the practical function of the reconsideration system in civil procedure,the author intends to explore the value of the reconsideration system in civil procedure from the perspective of the legislative evolution,the judicial status quo and the comparison of similar systems abroad,reveal the development trend and difficulties of the reconsideration system in civil procedure,and then put forward the reform path of China's the reconsideration system in civil procedure.This paper is divided into four parts except the introduction and conclusion,and the basic contents of each part are as follows:The first part is about the basic category of the reconsideration system in civil procedure.This part mainly discusses the concept,origin,type,value evaluation of the reconsideration system in civil procedure,aiming to have a more detailed analysis of the basic theory of the reconsideration system in civil procedure,and then reveal the essence and internal law of the reconsideration system in civil procedure.The author thinks that the reconsideration system in civil procedure does not come into being with the emergence of the relevant legislation of civil action in our country.It is not the inheritance of the old law of our country,nor the transplantation of the relevant foreign legal system.With the continuous development of social economy,the improvement of people's living standards and the awareness of rights,and the increasingly rich practical experience of the court,the legislators,after learning from the relevant provisions of China's administrative reconsideration system,have set up a special relief system in China's civil procedure law for those who refuse to accept a specific procedural ruling other than civil judgments.It is the product of the development of China's civil procedure law to a certain stage,an important symbol of the modernization of civil procedure,and also the inevitable result of the relief diversion of the judgments made by the people's court in China's civil procedure legislation.According to the provisions of China's civil procedure law and relevant judicial interpretation,taking the applicable object of China's civil procedure reconsideration as the standard,civil procedure reconsideration can be divided into avoidance reconsideration,preservation reconsideration,prior execution reconsideration and fine detention reconsideration.It has important value for relieving the litigant's litigation rights,restricting judicial power,ensuring procedural justice and improving litigation efficiency.The second part is about the current situation and existing problems of the reconsideration system in civil procedure.This part takes 1833 civil litigation reconsideration adjudication documents uploaded by the people's courts at all levels in China from 2015 to 2019 as the research sample,and combines with the information obtained by author in the field research of the people's court to conduct a comprehensive investigation on the operation status of the reconsideration system of civil procedure in China.(1)The number of applications for the reconsideration system in civil procedure accepted by grassroots people's courts is the largest,followed by intermediate people's courts,and the Supreme People's Court is the least.The number of applications for reconsideration of civil litigation accepted by people's courts in China every year is on the rise with the growth of years.(2)In the civil reconsideration applications accepted by people's courts at all levels,the main reason for reconsideration is that the parties or other interested parties are not satisfied with the property preservation ruling made by the people's court,and other reasons for reconsideration account for a very small proportion.(3)There are different ways for people's courts at all levels to examine the application for reconsideration of civil litigation.Some of them are simple,and the original judge or the collegial panel directly makes a reconsideration decision after a written review.Some of them are strict and standardized.After a separate collegial panel is formed,they can read the face-to-face materials and listen to the opinions of the parties The final reconsideration ruling shall be made after the statement of other interested parties.(4)People's courts at all levels mostly reject the reconsideration application of the parties or other interested parties in the adjudication of civil litigation reconsideration matters.The proportion of the cases of changing or revoking the original adjudication is small,and there are still a small number of cases where the adjudication agrees to withdraw the application for civil litigation reconsideration.In addition,with the growth of the year,the number of civil reconsideration applications accepted by people's courts at all levels is increasing,but the change / cancellation rate is on a downward trend with the growth of the year.(5)The quality of the civil litigation reconsideration ruling documents is uneven,and the effect of the reconsideration ruling is not final.The composition of the reconsideration judgment is similar to that of the civil judgment,but the quality is mostly unsatisfactory.The expression of the reconsideration judgment is abstract and vague,which is difficult to convince the parties or other interested parties.In addition,there are many cases of applying for reconsideration again after the reconsideration decision of civil litigation is made.Some judges even indicate at the end of their own reconsideration decision that if they do not accept this decision,they can also apply to the people's court that made the decision or the people's court at the next higher level for reconsideration once.If the execution is not stopped during the reconsideration period,the effect of the reconsideration decision will not be final.Through the investigation of the current situation of the civil litigation reconsideration in China,it is found that the civil litigation reconsideration system in China is not "nominal" or "nominal" as some researchers put it.On the contrary,it has achieved certain results.It prevents and corrects the wrong or improper procedural rulings made by the people's court,relieves the legitimate rights and interests of the parties or other interested parties,improves the litigation efficiency,and enhances the judicial credibility of the people's court.But at the same time,it also exposed many problems to be solved,such as the small number of cases,narrow relief coverage,chaotic relief procedures,the final effect of the reconsideration ruling is not final,and the quality of the reconsideration ruling documents is uneven,etc.the root cause lies in the lack of civil litigation reconsideration legislation in China.Influenced by the legislative ideas of state departmentalism and procedural instrumentalism,there are still many problems in the current legislation of civil litigation reconsideration system in China,such as the narrow scope of application of civil litigation reconsideration system,the lack of operational procedural rules,the vague definition of the relationship with other relief systems,and the poor connection.In addition,the discussion on the reconsideration of civil action in the theoretical circle has not reached a final conclusion.In judicial practice,judges attach importance to the entity rather than the procedure,blindly pursue the quick conclusion of the case and the low awareness of the protection of the procedural rights of the parties,and are lazy to file the application for reconsideration of civil action.These are also the important reasons for the obstruction of the function of the reconsideration system of civil action in judicial practice.The third part is the comparative study of the similar systems outside the region.This part takes Germany,Japan,and the anti-appeal system in the Civil Procedure Law of Chinese Taiwan as the research object,which has the same function and similar application object as the reconsideration system in civil procedure.It analyzes the concept,application object and procedure rules design of the system in Germany,Japan and Taiwan of China,and draws some enlightenment: the anti-appeal system in Germany,Japan,and Taiwan of China is more complete than the reconsideration system of civil procedure in China in terms of the scope of application and the design of procedural rules,but it is not perfect.It also has its shortcomings.For example,the establishment of the original self-correction system of the adjudication court in the protest procedure is not conducive to the improvement of the efficiency of the litigation,nor the timely right and interests of the parties Relief,although there are still some deficiencies in the system design of the civil litigation reconsideration system in China,it is not "nothing to do",it also has the system advantages that the protest system can not compare,such as its simple and flexible procedure design,with the characteristics of timely relief,high efficiency and low cost.The fourth part is about the reform path of the reconsideration system in civil procedure.On the basis of summing up the legislative and judicial experience of China's civil litigation reconsideration system,this part consciously learns from the advanced experience of similar systems abroad,and puts forward practical reform paths for China's civil litigation reconsideration system.This paper discusses the purpose and function of the reconsideration system of civil action,the internal coordination between the reconsideration system of civil action and the objection system,the appeal system,the retrial system,and the specific design of the procedural rules of the reconsideration system in civil procedure.The author thinks that the purpose of the reconsideration system of civil procedure in China is to prevent and correct the wrong or improper procedural judgments made by the people's court,relieve the procedural rights of the parties and other interested parties in time,and ensure the people's court to exercise the procedural adjudication power according to law.The author thinks that the system of reconsideration in civil procedure,together with the system of objection,appeal and retrial,constitutes the main content of the right relief mechanism of civil procedure in China.They are the product of the relief diversion of the judicial act made by the people's court in the civil procedure legislation of our country.As for the specific judicial act of non-adjudicative nature made by the people's court in civil procedure,the civil procedure legislation in China should give the parties relief ways to raise objection to the original ruling people's court;As for the specific procedural adjudication made by the people's court in civil litigation,China's civil litigation legislation should give the parties the relief way to apply for reconsideration to the original adjudication people's court or its superior people's court;If a specific procedural ruling made by the people's court in the course of the operation of the first instance procedure has not been reviewed by the people's Court of the original ruling,or there are new reasons for application after the review by the people's Court of the original ruling,supplementary relief can be provided in the appeal against the first instance ruling;If the people's court still refuses to accept the order of rejection of prosecution made in the procedure of first instance after reconsideration,it may apply for retrial for relief;In principle,the right to apply for retrial can not be granted to the procedural matters that have been given supplementary relief in the second instance.Therefore,in a sense,the reconsideration of civil litigation is the re relief for the result of objection processing,while the appeal and retrial are the re relief for the result of reconsideration processing.The four parties not only have division of labor,but also have cooperation,and are committed to the relief of civil procedural rights.Finally,it designs the procedure rules of the civil reconsideration system and draws up the draft of the civil reconsideration procedure.