Civil Rehearing Reasons

Civil rehearing procedure reform in China is a heated topic both in theory and practice. Especially discussion on issues about rehearing never stopped. In October 28, 2007, the 30th meeting of the 10th National People's Congress Standing Committee passed the Decision on amending the People's Republic of China Civil Procedure Law(hereinafter referred to as Decision).The Decision covers nineteen amended provisions, including seven provisions about rehearing procedure. The decision makes significant amendment and adjustment about rehearing procedure. In November 10, 2008, the Supreme People's Court promulgated the Interpretation on Several Issues about Judicial Supervision Procedure during the Application of Civil Procedure Law, which makes relevant interpretations about the new provisions of rehearing procedure. In this amendment, the most noticeable point is amending and increasing rehearing reasons. Compared to the former law, the rehearing reasons stipulated in the new law become more definite, specific and objective, which is more practical than before. This amendment draws inference from relevant provisions in the civil law system and absorbs developed legal ideas, which has made the design of rehearing reasons become more rational and an important advancement in the legal development. This amendment, however, is not comprehensive and systematic and has left some areas which still need to be perfected. Some remained issues are still heatedly discussed in theory and practice. This paper focuses on the amendment of reasons causing rehearing in the new Civil Procedure Law, begins with the basic theories and specifically delivers the main contents. In addition, on the basis of comparing with foreign laws and combining with current condition of judicial review, this paper delivers suggestions on the remaining problems. The whole paper includes four parts as follows:Chapter 1 is discussion of basic theories about civil rehearing reasons, including concepts, classification, designing principles and relationship with res judicata. Civil rehearing procedure is a procedure of rehearing the judicial decisions which have come into force, so it definitely affect the enforceability of these decisions. This chapter mainly discusses how to balance their relationship and reasonably design rehearing reasons in accordance with principles of legality, certainty and significance, and how to select and look up the border between rehearing reasons and res judicata. The aim is not only to provide remedy to false decisions, but also to safeguard stability of effective decisions.Chapter 2 is research of rehearing reasons in foreign countries with comparative methods. Through comparing with relevant laws in Germany, France, Japan, Taiwan and the US civil procedure laws, this paper concludes that the countries in civil law system more focuses on substantial reasons which may cause injustice of decisions, less on procedural faults. Common law system more focuses on procedural reasons and protects parties'procedural rights to the largest extent.Chapter 3 is discussion of Chinese civil rehearing reasons. Regarding Chinese civil rehearing reasons, the former law is not clear and ignores procedural justice. The new law and judicial interpretation specifies rehearing reasons and remedies the faults of the former law. This chapter specifically discusses the contents of the fifteenth provision in the second clause of the current law and makes some comments on Chinese civil rehearing reasons from comparative view.Chapter 4 is about some thoughts and suggestions on perfecting Chinese civil rehearing reasons. Inspired from current condition of judicial review, this chapter delivers suggestions on guiding ideas, design principles, limiting application, specific reasons. The author thinks that the guiding idea of remedying all faults shall be changed to limitedly remedying faults, which are more consistent with characters of remedying procedure in rehearing and more beneficial to establishing judicial authority. The future direction of amendment should be eliminating reasons for which the courts start rehearing, limiting reasons for which the prosecutors start rehearing, changing current condition of strong inquisitorial system and establishing adversarial system of rehearing. Regarding several specific reasons for which parties apply for rehearing, the author delivers basic thoughts about the perfection.