Study On The Current Start-up Of Civil Retrial Procedure

As a special error correction and relief procedure,Civil retrial procedure is the last resort of judicial remedy. So it plays an essential role in civil proceedings. Litigants start retrial procedure has two purposes, first, expect the trial judge revoked by the retrial procedure; the other is expect their claims to be supported by the court in the retrial process. However, the Court or the Procuratorate exercises the right to start the retrial procedure, focused more on maintaining the law's authority and unity, in order to protect social stability. According to China's existing civil litigation, People's court, People's Procuratorate and the parties are all the main starts of starting the retrial procedure. And there are many problems in this system design.As a main start of retrial proceedure, People's court only pursuits substantive justice, ignoring procedural fairness, which does not meet the purpose of civil litigation, nor is it the true meaning of the value of civil justice. The aim of Civil action is to achieve balance of substantive justice and procedures justice, safeguard the legitimate rights and interests of the parties and to ensure the effectiveness of civil procedural fairness and realization of procedural value.While the People's Procuratorate as a main start of retrial proceedure, to a certain extent, violates the independence of the trial court and undermines the equality of legal status between litigants. But as a main start of civil retrial procedure, the status of the Procuratorate has a certain positive significance: For the one hand, prosecutors exercise their supervisory power to ensure judicial justice; for the other hand, some of the cases involving public interests require the intervention of the prosecution.As the main parties to start the retrial procedure, the rights of the litigants should be expanded to protect the exercise of the litigant's disposition, but it must be given some restrictive conditions to prevent the abuse of the judicial process. So the key problem is to seek a balance mechanism between the litigant's disposition and the public prosecutor's supervision. The writer proposes to abolish the right of retrial proceedure of the court, constructing the retrial procedures of parties as the main, supplemented by the People's Procuratorate, with a view to the greatest extent to protect the legitimate rights and interests of the parties.