Research On Civil Retrial Causes

Civil retrial causes is the reason or foundation to start the retrial proceeding, and is also the key to start the door of the retrial proceeding. But how to define the retrial causes, which refers to the extent matters to which the retrial systems applicable in one respect, and whether the retrial systems can be effective and run reasonably in the other respect. If the setting of the retrial causes is too abstract; if we bring the items which shouldn't bring into the retrial causes; if we don't express accurately. All of these will lead to the abuse of the retrial causes and the cost of the retrial relief will increase, which are not worth the effect. The scientific retrial causes should save coruts'power and not touch the pressure wire that leading to the abuse litigation and doing harm to the authority of the justice at the same time. Therefore, having the deep study of the civil retrial causes, analyzing the existing problems among it, carrying out the reasonable proof and raising the perfect tactics have the reasonable and practical significance to the reform of the civil retrial systems and the coordinative running of the civil retrial proceedings.The first part of the thesis mainly discusses the vertical comparison and analysis of the retrial causes. In this part, first, the author have the detailed elaboration of the related retrial causes' legislative background, legislative settings, legislative shortcomings, the reverse influences and perplexities brought to the practice of the justice in 1982,1991, and 2008 this three different periods. Looking the developmental process deeply, the author discovered that in our country the settings of the retrial causes have its own characteristics. In the aspect of the setting's guiding ideology, it followed the notion that "mistakes must be corrected". However, this ideology has conflict with the corut's punishing power, the value of the litigable efficiency and the value of the proceeding's stability. In the aspect of the starting system, it reflects the pluralistic characteristic of the retrial subject, exacerbates the difficulty of the retrial and shake the stability of the judge. In the respect of the detailed settings, it stresses three features:the entity standards, the subjective standards and the summary standards. But these features rum counter to the trend of the legislation in the future. The discussion and the analysis in this chapter offer the reasonable and practical foundations to the consummation of Chapter Three.The second part of the thesis mainly discusses the horizontal comparison and the inspiration. In this part, the author has investigated the legislative settings of the retrial causes in the civil law countries, especially those representative countries:Germany, Japan, France, Austria and Russia separately. However, the author didn't let the general settings among these countries have the synthetic comparison. By the contrary, the author made the detailed comparison of the representative civil law countries'detailed settings from the findings of fact retrial causes and the violation of procedure retrial causes this two aspects. Under his two aspects, the author has summarized the retrial causes which has been set up in these countries, and had a comparison and analysis of the each subject from the microcosmic aspect, then revealed the differences of the settings and the reasonable foundation of the retrial causes'settings in different countries. Therefore, through this two aspects'elaboration, we can find that the settings of the retrial causes in the civil law countries follow the explicit, significant, supplementary principles. And these three principles can balance the relationships among the values of pursuing justice, litigable efficiency, proceeding stability and justice authority fairly. Therefore, these three principles have great leading significance to the consummation of the legislation of the retrial causes in our country.The third part is the consummation of the retrial causes in our country. In this part, the author was aimed at the legislative settings of the retrial causes and the problems reflected in the practice, and at the same time used the feasible practice in the civil law countries for reference. Then, the author raised the consummate suggestions from the following four aspects separately:First, we should put the notion that "mistakes must be corrected" as the guiding ideology, and make sure the range of correcting mistakes and the reasons for errors; Second, to cancel the active retrial of the court, restrict the ease of the start of the retrial and avoid the violation of the proceeding stability and the justice authority; Third, to restrict the protesting litigate retrial of the procuratorate. The range of the active protesting litigation should be restricted in the cases that have something to do with the state interest or the public interest. Putting the retrial application the coruts raised as the pre-procedure of its protesting litigation; Last, to consummate the subject that the coruts apply for the retrial. The author has the detailed analysis of the findings of fact retrial causes, the violation of procedure retrial causes, and the application of laws retrial causes separately. The author also raises several detailed consummated suggestions to make our country's retrial causes can fairly solve the problem that the retrial is very difficult to deal with, by combining the reality in our country and consulting the experience in foreign countries.