Research On Construction Of The Retrial Procedure

Retrial procedure is the appropriate balance of res judicata and justice of the valid judgement,scholars always pay more attention on the relationship between res judicata and the civil trial proceure.After systematically expounding the related theories,the author draw a conclsion that the subtle relationship is existing between res judicate and the retrial institution.Consequently,to study the retrial proceeding is not only to restrict the retrial conditions in terms of maintaining the stability and authority,but also to prescribe when and how to repeal the res judicate.Our scholars currently mostly focus on the problems of trial practice in order to sustain res judicate and stipulate stringent procedural esences for commenceing civil retrial procedure,whereas elide res judicate of the valid judgement.By comparison with othe countries'legislation and theory, many conflicts are existing.Besides the Introduction and the Conclusion,the Paper is divided into four parts.Part One:Res judicate and construction of the civil retrial procedure.On the basis of explaination of the theory of res judicate and analysis of the theory of object of litigation as well as the theory of retrial phase,the author advocate the relation between res judicate and the civil retrial procedure.He hold the opion that the study of the retrial institution should not noly answer the problem whether or not the retrial procedure be started,but also settle the question when and how repeal res judicate.Part Two:Objects of the retrial procedure.In this part,by using methodoly of comparative law,the author study the theory of unitary object of litigation,Dualistic objects of litigation and the theory of new unitary object of litigation.He draw a unique academic conclusion on the object of the litigation of the suit for the retrial and give his comment on the various doctrines.Part Three:Retrial phase.This part refer to the legislation of Austria,German and Japan on the retria phase.The author examine other countries'law , stipulate division of the retria phase and bring forward the subject and content of every phase.Part Four:Rethinking and reconstruction of the civil retrial system of our country.The author expound prescription of our country's legislation and from the angle of the relation between res judicate and the retrial procedure espatiate the object an phase of the retrial procedure.