Research On Some Issues Of Our Civil Retrial Procedure

As a special relief program when there are mistakes in taking effects to judge, For a long time the civil suit retrial program has been playing an active role in protecting parties'legal rights and interests and guaranteeing judicial justice. However, the Civil Procedure Law before revised did not reasonably build the civil suit retrial program by considering the basic principle and theory of the Civil Procedure Law, as a result, A number of problems have arisen from the application of the civil suit retrial program to judicial practice, which leads to interested parties'retrial or difficult retrial and their legal rights and interests can not be guaranteed. What is more, the number of appealing by involved people is on the increase, and the validity of the award suffers severe impact. In recent years, many scholars and colleagues of practical circles discuss a lot on the reform of civil suit retrial program and the China Civil Procedure Law is revised last year, whose contents are modifications and additions to it. We should say that the reform of the civil suit retrial program has step up to the right direction, but there are still some problems that are not solved yet. By combining his personal practice in judicial work and viewing from the revised Civil Procedure Law, the author gives some theoretical discussions on improving the civil suit retrial program, hoping to make steady progress in improving the civil suit retrial program.The passage is divided into three parts, the first part is about the theoretical foundation and practice confusion of the civil suit retrial program, it discourses the confusion in the practice of civil suit retrial program and theoretical foundation of the establishment of this system. The civil suit retrial program of our country is a special program which provides help to wrong actions in taking effect to judge. In the basis of the right to supervise, the subjects are legal organ and personnel. The procedures are simple and not limited by time. There are quite many confusions in the legal practice such as the authority and pluralism in starting the procedure, accept ion of application for retrial and absence of procedures for examination, oversimplification principle of the retrial, the settlement agreement having no law enforcement, complication of the judicatory court, some drawbacks in the retrial procedures and so on. In a word, it is because the civil suit retrial program of our country takes the justice of law as the value, takes the principle of Seek truth from facts, having a mistake to must rectify as guideline, takes the entity reality as aim, that is to say the theoretical foundation occurs errors and do not reasonably build the civil suit retrial program by considering the basic principle and theory of the China Civil Procedure Law. The second part is revisions of civil suit retrial program. It discourses the breakthrough ideas, modifications and existing drawbacks of civil suit retrial program in revised Civil Procedure Law. The main breakthrough is it found the idea action for retrial, which changes the retrial. The content makes clear the concrete matters and the application to the higher court when the party applies retrial, the period of evaluation of retrial and extension period of evaluation of the parties'application are also defined, and the legal supervision of the procuratorial organ is improved and so on. But the existing drawbacks are still obvious, for example the court and the procuratorates are still reserving the retrial according to authority, it lacks of the condition to accept the case of retrial, the way of investigation is not complete, the jurisdiction has some aspects without unify and closeness, in the retrial case, there are terms which still emphasize entity and ignore procedures, people outside related civil cases are not given relief procedure for the wrong judgments, The settlement agreement has no law enforcement and the range of retrial case can not be controlled, etc. the third part is the thinking of civil suit retrial program improvement. The author thinks that the civil suit retrial program improvement should establish reasonable theoretical foundation and raise concrete proposals to the civil suit retrial program. The civil lawsuit is rooted in public protection needed between two parties'conflicts, the purpose of it is not only to protect the conflicting individual, but also tend to maintain public order of social and public interests, and thus it can realize the value orientation of safeguarding social stability. By viewing other countries'civil lawsuit procedures, binding force is the most important criteria, the aim of establishing civil retrial procedure also embodies the legitimate pursue to the binding force. So In a sense, the law stability (binding force) should be the value orientation of civil suit retrial program, and the balance between justice and stability of the law must be searched. While the principle Seek truth from facts, having a mistake to must rectify, as guidelines of legislation, can not consider the features of Civil Procedure Law, so it is unilateral. In the light of regular practice of other countries, rectifying the wrong cases is limited by the parties'right of disposition; it is also limited by the statute of limitations, proof limitation and level of wrong case. but to the court and procuratorates, the principle Seek truth from facts, having a mistake to must rectify means no matter what level the fault is and when the fault is found, the fault should be rectified actively; to the parties involved, it means they can apply retrial continuously, as a result, this will affect the stability and authority of the effective judgment, people will not trust the court even get around the law. Therefore, the principle Seek truth from facts, having a mistake to must rectify must be discarded, turning it into basing on the parties'appealing right and disposition right. In civil suit retrial program, the entity verism is inclined to pursue entity interest. It expands the instrumental value of procedure, which inevitably leas to the shrinking of intrinsic value function of procedure and it will not conform to the modem justice idea if it pursues entity justice by sacrificing procedure interest. So we should pay attention to the coordination among the entity justice, procedure justice and effective value of procedure, guaranteeing the judgment finality by balancing procedure justice and entity justice, combining the law facts and objective facts. Based on this theoretical foundation, the retrial according with authority must be cancelled, the counter appeal should be replaced by checking suggestion and limited in the social public interest, the jurisdiction principle of upper level court retrial should be made clear, the jurisdiction of origin court should be excluded, the formal requirements of accepting retrial application should be improved, the idea of emphasizing entity and ignoring procedures in retrial cases should be cancelled, people outside related civil cases should be given the right of retrial, the hearing should be taken as the investigation method of retrial case, making clear that the settlement agreement will have law enforcement after conciliation statement is made by the investigation of court and improving the range of retrial cases etc.