On Civil Retrial System In Our Country

Civil retrial procedure is a remedial and supervising judicial system set up especially based on the requirement of entity and procedure for justice. It performs an active role to rectify wrong adjudication, protect the legal right and interest of litigant and ensure righteous judicature. Because the regulations related to the current civil retrial system have excessive principles or are not perform, not so operative and clearly characterized by doctrine of function and power, however, many new problems appear in the judicial practice and are blamed. This thesis analyzes and criticized the defects in the current civil retrial procedure through studying on the history and characters of civil retrial system in China, and sets forth a reasonable and feasible proposal about the way to reform and perfect civil retrial system.The first part of the thesis mainly studies the development and features of civil retrial system in China, and lays a foundation for the further analysis of the defects and perfection of civil retrial system. This part first retrospects the development process of civil retrial system, and generalizes the basic mode of civil retrial system after the foundation of the New China. In the history of legality civilization of China, the regulations of judicial rectification began to appear under the feudal legal system, in which all laws are integrated and there was no distinction between civil law and criminal. The retrial system experienced at the time of new democratic revolution was the sprout of the current civil retrial system of our country. Since the foundation of the New China, the mode of trial by power and function has been in the leading position, i.e. a case is mainly brought to court for retrial by court according to its power and function and by a procuratorate through protest to the judgment. Moreover, the author generalizes the characters of civil retrial system of China into four points. Civil retrial system is remedial; it is not a necessary procedure for the trial of each and every civil case, but only a trial system that compensate and remedy the effective civil judgment that is actually wrong. The civil retrial system is of legality, and the subject and particulars are prescribed. It is featured by retrospect. The object of the procedure is civil judgment and ruling that has been effective legally. The civil retrial system is prescriptive. Prescription is the direct presentation of the justice of procedures. It contradicts the aim of existence of judicial power if litigation goes on endlessly. The second part of the thesis analyzes the defects of the civil retrial system of our country, discusses the five aspects of insufficiency of the current civil retrial system, guidance principle, initiation subject, initiation particular, initiation limitation, jurisdiction and trial grade. First, there is deviation in the guidance principle of civil retrial system of our country. For the long history, the guiding principle of "seeking truth from fact; and all wrongs must be corrected" has been adhered to, which excessively stresses the conformation between legal truth and objective truth and blindly tries to correct all wrongs and neglects that the truth ruled by the court is limited by people's cognition ability and the complicated objective conditions and can only be legal truth that is proofed and relatively true. It is impossible to realize this guiding principle in the practice of civil judgment. Secondly, there is deficiency in the initiation subject of civil retrial procedure. On the one hand, when a court actively brings a case to court for retrial according to its power and function, it violates the principle of "neutrality of court" and principle of "inactivity of judicature" and at the same time it does not conform to the principle of "separation of litigation and trial" and principle of "disposition of litigant," which is harmful to the establishment of judicial independence and authority. On the other hand, there is not enough limitation of People's procurator...