On The Establishment Of Appeal Reexamination Procedure

The civil right of appeal is the civil right granted by the constitution of our country and it should receive protections. However, there is not any according litigation relief procedure in legislation. As a result, the problem of "hard to appeal" upsets both judges and parties at the same time. Although there is not yet the last word for the concept statement and concrete running patterns concerning appeal reexamination procedure on the theoretical stage and the related legal regulations are not quite clarified and specific, this procedure has objectively existed in judicial practices. The existence of this procedure is no other than the guarantee of civil realization of litigation relief right, which relates to the theme of judicial justice in the people's court in the new era; effects social stableness in the primary stage for socialism in China; integrates the new concept of people oriented in Chinese administration of justice and therefore has theoretical and practical significance. This research paper tries to make an analysis on the concerning problems of appeal reexamination procedure so as to promote the establishment and perfection of appeal reexamination procedure in our country. The discussion proceeds in five aspects. Chapter One Introduction of Appeal Reexamination Procedure The appeal reexamination procedure is the procedure of examining the reexamination matters from the moment when the party hands in the requisition or appeal paper to the case-establishing court of people's court to the moment when this court issues appeal rejection (reexamination application) notice, the notice not to place a case on file or reexamination judging paper by means of appeal reexamination hearing or questionnaires. This procedure is the consisting part of judgment supervision procedure. The characteristics of this procedure are that although appeal reexamination procedure has objectively existed in judicial practice, it is not yet legalized. This procedure is the practical complement and perfection to reexamination procedure. It changes the structure of judgment supervision procedure and perfects and regulates the complete litigation system of judgment supervision procedure. It is the procedure compatible with both reexamination ceasing and reexamination start-up. The "Constitution" and law of litigation grant citizens right of appeal. Therefore, appeal reexamination procedure is based on law. In combination of the theoretical research on appeal reexamination procedure of the judicial circle and her own working experience, the author thinks that appeal reexamination procedure should keep to the following principles: the resource of appeal reexamination case should only be the litigation from the party; except for the situations in which parties viciously collude each other to damage national interest, the principle of no attention-giving without any litigation of reexamination according to posts should not be applied; as for the party who comes to the court for litigation for the first time, the litigation door and court door should be wide open and there must be executions for any litigation from any comer; appeal reexamination procedure is different from the first trial, the second trial and re-trial procedure, so there is no need to repeat the kind of session reexamination and this procedure manifests the efficient * principle of fastness and concision; in the process of reexamination, there should be a limitation to the evidence quotation of litigator (applicant) in that only litigation (application) focus is reexamined and the reexamination process is stopped with the discovery of mistakes and the reexamination of the whole case is not exerted; the same court has only one chance to accept and hear the same litigator(applicant) and reexamination has "relative case ceasing function". Chapter Two Legal Significance of Appeal Reexamination Procedure Establishing appeal reexamination procedure is the need to protect right of appeal of the party and is the necessary guarantee to realize "procedure justice" or "procedure fairness" as well as the need of national legal system. Appeal reexamination procedure has independent procedural value. To establish appeal reexamination procedure is the need of Chinese situation; the need for reformation, stableness and development and the complement and perfection for legislation in trial practice.Chapter Three Hearing System of Appeal reexamination The core of appeal reexamination procedure is hearing system of appeal reexamination. In trail practice, the running regulations hearing system of appeal reexamination should keep to are as the following ones. First, multiple organizational forms of hearing should be attempted. The insistence on regarding solo-post hearing system, consonance hearing system, joint hearing system and multiple hearing system as a the complemented organizational forms of hearing has received good practical effect. Secondly, the scope of hearing content should be determined. The appeal claim of the party is the basis for reexamination. Appeal reexamination hearing should not undertake a complete examination but only aim at the hearing of litigation claim from the party. Thirdly, hearing manners should be regulated. As a kind of special judicial relief system, the handling methods of appeal reexamination hearing are not required to be as strict as the court interrogation; instead, they can adopt the court interrogation pattern or the pattern of informal discussion. Fourthly, hearing regulations should be unified. Fifthly, joint discussion should be undertaken after the hearings. Different situation should be distinguished and handled according to law. Chapter Four State of Affairs and Existing Problems of Appeal Reexamination For a long time, the appeal reexaminations of courts of every degree have been out of order, casual and without any regulation. The specific manifestations are that the functional departments of appeal reexamination procedure, examination patterns, exertion regulations and examination standard are not unified. Our country still has the problem of no separation between appeal and application. In judgment practice, the specific control on the start-up standards of appeal reexamination procedure, its start-up time, start-up times and other problems is not unified and the regulation on those aspects is not very strict. Only the party is the main initiating body of appeal reexamination procedure. The court cannot undertake reexamination according to posts once again and the procuratorate cannot interfere the private right with public right.Chapter Five Several Proposals on the Establishment of Appeal Reexamination Procedure Part One Formal Elements and Essential Elements of Appeal Reexamination Procedure The entrance for appeal reexamination procedure must have the following formal elements. The litigator (applicant) must be qualified and must hand in the appeal paper or application paper for reexamination accordant with regulations. The litigated (applied) case must be within the scope of legal regulation and dominated by the court receiving the litigation. The litigation must be proposed within the legal time limit and should not be re-litigated or applied for reexamination. The essential examination standards for appeal reexamination procedure should be that there is whether or not new evidence to overthrow the original judgment; the main evidence for the original judgment to confirm the truth is whether or not adequate; the applicable laws applied by the original judgment is whether or not wrong; the behaviors seriously break legal procedures and affect the correct judgment of the case; there is the evidence to prove that the judging officials have the behaviors of corruption and bribery, doing wrong to serve their friends or relatives and bending the law to help their friends or relatives and all these facts are proved to be true; the original judgment hinders the law exertion and legal unification; the factual basis of the original judgment is changed or canceled; there is the evidence to prove that in the intercession process there are situations of cheat and threat or the intercession agreement breaks the law and legal prohibition regulations and the content of intercession agreement harms national, collective or other's interests. Part Two Case Filing Examination Procedure of Appeal Reexamination Case Appeal reexamination case mainly applies the ways of written examination and hearing, accompanied with necessary investigation examination. The case filing court is responsible for examination and approval. After the approval of the presiding judge, the information of the case will be input into computer. Case classification applies three kinds of...