| With the establishment and development of socialist market economy system and the actualization of ruling of law, the citizens'legal consciousness has gradually advanced. Through judicial activities, the people's courts settle the civil and commercial dispute between equal entities, mitigate lots of social conflicts, stabilize the social economical relationships, and promote the property circulation. In the meantime, however, a great many people who continuously write complaint letters and make calls to the government appear in the society. Some of these people make unreasonable complaints, and some even assemble to beset the Party and government organizations and People's Congress, which severely molest the regular work of national organizations. As for the causes, besides the problematic quality of case solving, judicial corruption and the impact of local protection, the unreasonable design of retrial procedure is an unneglectable factor. In recent years, the call for judicial reform becomes more and more intense. As one of the key objects in the reform, the reform of civil retrial procedure draws extensive attention in the society. Against this background, this paper makes a penetrating theoretical analysis of the civil retrial procedure in our country, in hope of laying a theoretical basis for this reform. The civil retrial procedure is a special remedial procedure in which the judgment already taken effect can be retried under certain situation in order to correct the faults. The lack of differentiation between "appeal"and "retrial apply"in the present code of civil law causes the confused use of "retrial procedure"and "judgment monitor procedure"in both theory and practice. Therefore, the retrial procedure is prescribed, there are twelve articles ,in the sixteenth chapter of code of civil law "judgment monitor procedure", the content of which includes the retrial objects, the approaches to start retrial, the reasons to propose retrial, the procedure of retrial, the term of applying retrial, etc. This civil retrial system is not the simple continuance of the suit legislation in old China. It is in the new democratic revolution period, when the "book of six rules of law"by Kuomintang has been abolished that this system gradually comes into being in the revolutionary bases. Based on the legal supervision theory of the USSR, this system is the transplant of the legal supervision system of the USSR in China. It is proved in practice that while the retrial system has played a positive role in correcting false judgment and protecting the party's legal rights, it also causes confusion in suit procedure and harm the judicial authority. From a worldwide perspective, the retrial system exists mainly in the mainland law countries. Although there is retrial system in these countries, the retrial system is not limitless. English-American law countries do have retrial activities, however, they do not have normative appeal and retrial system. Both the mainland and the English-American law countries lay great emphasis on maintaining the stability and authority of the valid verdict. Nearly each mainland law country sets extremely strict conditions on retrial and they won't retry unless there is great blemish in the verdict. The English-American law countries do not have the retrial procedure, and the quality of case is guaranteed through the planning of a series of proceeding systems, such as answering procedure, finding procedure, pretrial meeting, opening a debate and the cross-examination. Additionally, with the jury system and the professional judge, the lawsuit is of high quality. The retrial of a final verdict is only under special circumstances. Wrong verdict is handled through appeal and certiorari. Therefore, the relations between retrial procedures and several notions of civil action should be dealt with sternly in order to establish the scientific and reasonable system of retrial procedure. Firstly, the relation between retrial procedure and judicial justice. The priority target of retrial procedure is to pursue the judicial justice, which includes both the justice of entity and that of procedure. The realization of judicial justice reflects the social justice. In the respect of legislation, social justice is realized by distributing the justice. While in the respect of judicature, the justice distribution is restricted by various factors in the society (subject and object factors), because the static justice distribution in the legislation has been transferred into dynamic right in the judicature. Therefore, judicature could only rectify the justice, that is, the universal justice. It is not practical to regard the retrial proceduresas the "catholicon"which could remedy the defects in the valid judgment. Secondly, the relation between the retrial procedure and lawsuit economy. Retrial procedure doesn't pursue the fair of judicature in the cost of procedure economy. Indeed, the convenience of the procedure could lead to the lawsuit economy, but lawsuit economy should not do harm to the justice of entity. Retrial procedure raises the functional cost of lawsuit, but it also prevents the increasing of the wrong cost. When the increasing of functional cost is limited in a reasonable scope, the lawsuit benefits could be advanced by reducing the wrong cost and getting total sum of the functional cost and the wrong cost smallest. Thirdly, the relation between the retrial procedure and the stability of law. The frequent start-up of retrial procedure will do harm to the justice of procedure and the stability of law. The frequent start-up of retrial procedure will do harm to the justice of procedure and the stability of law. Once the justice value were harmed, the stability value would lose its meaning. Fourthly, the relation between the retrial procedure and the force of immediate judgment is dialectical. On one hand, retrial procedure is the retrial to the valid judgment and the reevaluation to right and responsibility owned by the two parts, which conflicts with the force of immediate judgment. But on the other hand, retrial procedure and the force of immediate judgment are interacted. The former lays emphasize on the realization of entity justice, while the latter pays more attention to the maintenance of the stability of law and authority of judgment. They have the same target to maintain the authority of judicature. Finally, the relation between the retrial procedure and rights remedy. Retrial procedure, a kind of procedure set up for the rights remedy particularly, is the special way to the rights remedy. In spite of this, the remedy of retrial procedure is limited, not universal. It is given according to the parties' application and has posterity in time. This paper holds that the main characteristics of present appeal and retrial system are limitless appeal and limitless retrial, which boil down to mainly five limitlessness, namely subject limitlessness, time limitlessness, amount limitlessness, limitlessness trial grade and the reason (or condition) limitlessness. Especially the reason for retrial is general, both from procedure to entity and from facts to evidence. Only if the verdict is seemed to havefaults certainly,it can be retrialed anytime. This design of the system, unduly emphasizes the correcting function and therefore destroys the efficiency and the value of stability; unduly emphasizes the entity therefore neglects the procedural justice; unduly emphasizes the function of legal superintendence and therefore impinges on the right of action and the right of disposing. This is unfavorable to the maintenance of the stability and authority of the valid verdict. The reason why this design of system appears lies in that it concerns about the traditional suit system. As what is stated above, the present civic retrial procedure is constructed according to the former-Soviet Union legal supervision theory and imitation of the legal superintendence system. This supervision theory divides the legal supervision into the trial supervision of the people's court and the inspecting supervision in the people's prosecutorial office. If People's Court thinks that this court or People's Court below errs in making valid judgment, it can resolve to rejudge on its own initiative. As for people's prosecutorial office, it can propose counterappeal under the same circumstance. Apparently, the supervision of the court and prosecutorial office is active. This authority to supervise comes from the public right of the nation. The reason is that in former Soviet Union, legal principle basically denied the existence of private law. The establishment of legal supervision system does not result from the theory of power restriction but from the theory of power intervention. This concept of national intervention, which is beyond power is inconsistent with the concept of modern civil action. Owing to the systematic fault in the retrial procedure, the final judgment is lacking in its due stability, hence the universal existence of 'incomplete final judgment'. Therefore, some people overseas say, China is a country without final judicial power. Reforming the retrial procedure involves the pattern reorientation of the concerned party's retrial claim or his right to appeal and the construction of appeal for retrial. The action-taking for retrial of the party concerned is the only way to initiate retrial. In this way, a conversion from indefinite retrial to definite retrial can be achieved which is to be legalized step by step. Of the three reforming measures, which are canceling the authority of People'sCourt in deciding retrial and people's prosecutorial office's prescription in proposing counterappeal for civil case and the standardization of the examining procedure for retrial, the construction of appeal for retrial is the key of reform. The construction of appeal for retrial includes: 1. the object of retrial which is made up of verdict and partial judgment. Those cases, which have been mediated and ended by courthouse, should not be rejudged because this is the party's action of exerting his right of disposing. Those memorandums of agreement for mediation with illegal contents are not to be resolved with an appeal for retrial. Instead, the establishment of a legal process which involves the request of nullifying the agreement for mediation or canceling it is required. Therefore, the case will be settled more simply and conveniently. 2. The main contents for retrial which include those concerned with the violation of procedure, the subject of judgment and the cognizance of facts and the practical law. 3. The trial grading and domination of retrial. This paper argues for the domination of the superior court to the one which has made the effective judgment and the exertion of the policy of a final verdict with the judgment at first instance. As for the judgment of appeal for retrial, the execution of the original verdict is not to be ended in principle. The range of retrial is defined at the party's request. Since the appeal for retrial practices step-judgment and a final verdict with the judgment at first instance, the case is to be judged in accordance with the second judging procedure. Therefore, the retrial is limited to once-judgment. Above all, the reform of retrial procedure is a complicated technical project, concerning many deep theoretical problems, which has a close relationship with the litigation system, the judge system and the political system. This paper is only a shallow discussion on the related problems of the reform, in hope of causing good professional effect.
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