On Reconstruction Of Civil Retrial Procedure

Retrial proceeding, namely proceeding of adjudication supervision, is the proceeding of retrial for the rectification of errors existing in effective judgements. The proceeding is based on the theory of proceeding ensurance, witch is entitled litigant parties to fully enjoy the right of pursuing substantial and procedural interests. On account of the complexity of objective factors, the subjectivity of artificial factors, as well as the limitation of judges' knowledge and capability, however, the occurrence of wrong civil trials is unavoidable. Retrial proceeding come into being in season to meet the urgent need of relief of the rights infringed by wrong trials and of establishment of a procedural mechanism to restrict judicial right and arbitrariness of judges.The exsiting civil retrial proceeding in china has set up a relative complete structure including the subject of the start-up of civil retrial proceeding, the object of retrial, the jurisdiction of retrial, the causes of retrial, the time limit of retrial and the proceeding of retrial, but attributing to the influence of the conventional culture of litigation and the model of litigation characterized with extra-authoritism formed during the era of planned economy when learning the model of authoritism of U.S.S.R is just popular, the system of retrial proceeding still has some deviation in gudilines and objective of litigation, which is reflected in the following systems: the start-up of civil retrial proceeding is characterized with authoritism and against the principle of free will; regulations on appeal for retrial is too abstract to practise; regulations on retrial proceeding is too general to enforce; Owing to the factors mentioned above , the effect of the exsiting retrial proceeding is a bit far from satisfaction. On the one hand the phenomenon that declarationis difficult to practice, which is even more serious in appeal for retrial, is so common that a large number of obvious wrong judgement can not find an access to retrial proceeding. On the other hand some cases receive repeated retrial so frequently, which badly sways the stability and authority of judgements. To a conclusion, the system of retrial proceeding need reform and perfection.The author, using the legislative expierences about the system of retrial proceeding from two legal families for reference and combining oneself's judicial practice, conceives a set of ideas about restructure of the system of retrial proceeding, witch is characterized with macro before micro, abstract before concrete, procedural stability and benefit as the value objective lf retrial proceeding; to take the knowledge of conflict and coordination between national jurisdiction and litigant right of litigants as baseline; to handle properly and balance three relations between proceeding of adjudication supervision and litigant right of litigants, validity lf effective judgement and rectification according to law, justice and benefit. On the basis of above ideas can we start the restructure of the system of retrial proceeding in our country.As for the issue of restructure, the author suggests we should disqualify courts as the subject to start civil retrial proceeding, restrict the scope of retrial of procuratorial office, improve the condition of appeal for retrial for litigants, set up retrial litigantion; As for the issue of the scope of retrial, we should limite the object of retrial, list detail and clear causes of retrial; As for the issue of the proceeding of retrial, we should stipulate detailedly on the qualification to appeal for retrial, the examination and hearing of retrial litigation, the trial procedure of retrial. Besides, the author also express the view on the issue of response to the expense of a lawsuit.