Discourse Upon Civil Retrial System

The existing civil retrial system of China is established under the influence of civil litigation system of fomer Soviet Union whereby planed economy was being practiced.Under the conditions of Chinese market economy,it presents a lot of defects. For instance, it is difficult for parties to start civil retrial, and there is no limit to litigation period and times, and court's start of retrial system by power and Procuratorate's protest for retrial do infringe the party's litigation and disposal right. After introducing Chinese retrial system, this article compares and examines foreign relative regulations, explores basic jurisprudence, reveals its internal operating regulations and provides suggestions on its reform for the purpose of constructing a scientific and resonable civil retrial system in our country.Part one includes chapter one and two, which manly introduces Chinese civil retrial system, comparing and examining that of foreign countries. While intrducing Chinese retrial system, this essay defines the concept of 'civil retrial system'through comparing civil retrial procedures, trial supervision, procedures of appeal and parties' complain, reviews Chinese retrial system history and its three approaches for starting the retrial precedure,and simply analyzes its unresonable factors. While introducing foreign civil retrial system, the article mainly horizontally compares the civil retrial systems of Germany, Japan, France and U.S.. The focuses are as follows: The subjects of starting, the retrial causes, retrial period and times, and so on. Finally it summarizes their scientific and resonable points in order toprovide recommondations for Chinese retrial reform.Part two includes chapter three, which mainly introduces the defects of Chinese retrial system. This part begins with a retrial case,firstly indicating the shorttcomings of the guidence principles of "seeking truth from facts and rectifying whatever is wrong", holding that it does not conform with the basic principles of civil litigation from the perspective of jurisprudence,and then systematically dicussing and analyzing the following defects: ways of starting the retrial causes retrial period and times, and so on.Part three includes chapter four and five, which mainly introduces how to reconstruct Chinese retrial system. Chapter four discusses the following aspects: the existance rationality and limitness of retrial system, the cooperation and bannance between retrial system and Res judicata. Chapter five begins with rectifying the guidence principles of retrial lawmaking, indicating that such retrial mode should be established which is characterized by not always rectifying whatever is wrong, limited retrial, balance between justice and benefits. Then the article provides a series of suggesstions for reform. Among them,the most important point is to abandon court's retrial determination by power and procuratorate's right of lodging protested retrial. In the meantime, we should pefect parties' litigation right so as to establish a real action of retrial procedure. In reference to the reasons for reconstructing retrial system, we should consider the procedual and substantive mistakes resulted from the original judgment, and reconstruct an rational retrial system on the basis of borrowing the relative foreign regulations carefully.we also shoule set reasonable regulations on retrial times and period,retrial jurisdiction an so on, for the purpose of establishing a scientific and reasonable civil retrial system.