Reflection And Reconstruction In China's Civil Retrial Commencing

In our country's current legislation and theory, civil retrial proceeding as a special relief procedure of the civil retrial was to be set up with the mode which lays particular emphasis on public power supervision and was placed in "trial supervision procedure". There are kinds of defects as well as problems exist in civil retrial procedure commencing as follow: unscientific subjective extents of civil retrial, review of the file is too arbitrary, unreasonable retrial jurisdiction and irrational statute of limitations etc. In judicial practice, on the one hand, it is difficult for the parties to apply for a retrial because of the lack of relief measures and procedures. on the other hand, the multi-caused retrial and disorderly civil retrial commencing lead to long-term social problems such as high legal petition ,magistrate force and "the problem of unsolved issues. The more depth reason of the emerging problems is that we lack of tradition of the rule of law, modern philosophy and theoretical research. Considering people's pursuit of entities justice and common practice in most other countries, the goal of reforming civil retrial commencing mechanism should be clear to reconstruct rather than repeal. And besides, we should establish limited, timely, finite judicial relief. The end of the magistrate will be sufficient respected, litigation system entities and the value of all procedures (particularly procedures stability, efficiency) both been paid same attention, trial supervision been to serve the judicial independence and judicial philosophy. With these concepts' guidance, in line with china's national conditions, we have to replace or transform the current corresponding concept, the parties should play a important rule in starting retrial procedure, procurator authorities should be forbidden to attend all other civil retrial by statutes. Reasonable, efficiency, limited commencing civil retrial procedure comprehensive of entities justice and judicial efficiency will be built up at last. The specific design of the system is presented in this paper: cancel court launched retrial, limit procurator authorities right to protest, give a clear right for the parties to appeal the retrial, the circumstances of retrial should be given priority to cases of substantial and procedural justice and stability and efficiency, the jurisdiction of the court should be given a trial of high-level, file review should take in the limited substantive review , the retrial limitations should take the reference of the model of German legislation technical aspects and so on. (Full text of 40,626 words)...