On The Reformation Of The Re-trial System In Chinese Civil Procedure

The inequity in the design of the current retrial system of the Chinese civil procedure is apparent in the following aspects: the final judgement being not final, sharp increase of retrial cases, chaos in litigation order leading to instability of the final adjudication and negation of the principle of res judicata and lastly the distortion of the administering of justice in judiciary. The reformation of the retrial system in China thus becomes an issue of topical interest among academic, judicial and practitioner's circles.The present Article is based on an analysis of the defects of the current retrial system, the remedial procedure of correcting improper judgements in foreign countries and the review and summing-up of the author's personal experiences in dealing with retrial cases, puts forth some preliminary suggestions merely to solicit better one from those cherishing the same ideals.The implementation of this system for more man ten years clearly shows that the multi-channel institution of retrial does not produce the desired effects. The present retrial system modelled itself mainly on that of the former Soviet Union, its operation in China gives rise to more state intervention than individual disposal, more layman recognised truth than truth recognised by law, seeking justice in substantial law more than legal procedure, and finally brings about 'numerous applicants, unlimited lapse of time, high frequency, confused jurisdiction, unmethodical causes of action'.The author concludes that the various sta'tes have adopted a prudent attitude towards the operation of retrial system by restricting the causes for its initiation to a few occasions and the lodger of such appeal to the grieved party only. When we reshape the retrial system,we should not pursue unilaterally the value of justice but should achieve the proper balance of the three values. We should also establish two fundamental principles for the reform. The first is the principle of autonomy of all intents of the parties; the second is the rectification in accordance with law. Under the guidance of these principles, the author suggest four points of reform: Rebuild the mechanism of initiating the retrial process; narrow the scope of the causes of action for retrial; clarify and fix the time limit for the initiating of retrial; In matter of procedure, jurisdiction should be given to court of upper level to review the case submitted for retrial, which should be final and under limitation of time and contents to be heard.