The Study Of The Examination Procedure Of Application For Civil Retrial

Recently, with the development of the system for trial supervision and the reform of trial mode, as well as the introduction of the separating reception from retrial, problems in the examination procedure of the apply of retrial procedure gradually expose to the public. Implementation of Amendment of Civil Procedure law in 2007 first definitely ordain the examination procedure of application for civil retrial in law, the legal of the examination procedure of application for civil retrial, for parties and court plays a very important role. The thesis is trying to use integrate theory with practice and comparison to analyze it, by means of analyzing research results and reformation experiences in the present theory circle and practice circle, and put forward concrete conception for completion of the examination procedure of application for civil retrial.The whole thesis is divided into six parts: the first part is introduction. Mainly explaining the content of the examination procedure of application for civil retrial,problems in practice and the meaning for studying the procedure.The second part is about the basic theory of the examination procedure of application for civil retrial. Analyzing the concept,character and trait of the examination procedure of application for civil retrial in this part, according to the present law, the apply of retrial procedure starts the retrial procedure unnecessarily, the procedure is the preceding procedure for starting the civil retrial procedure. There are two results for the case of retrial application though examining it: one result is rejecting the application, and another is entering into the retrial procedure. Though seeing about the legislative development, we can see that, Civil procedure law before 2007 there is not normative proceeding in the result of rejecting the application or entering into the retrial procedure, and it can create the confused practice. the examination procedure of application for civil retrial is added in Amendment of Civil Procedure law in 2007, the scientific setting of the procedure plays a very important role for parties, court, judicial impartiality and so on.The third part is about legislative analysis for relevant systems concerning the examination procedure of application for civil retrial home and abroad. There are several problems in 1991 civil procedure: the jurisdiction of the court for the examination of the apply of retrial procedure is overfull, examination organize is not unification, also is examination mode, examination deadline is regulated indefinitely, the numbers of retrial application have no limits, the examination of the apply of retrial procedure is ruled in 2007 Civil procedure law in the following five aspects: the party may apply to a higher court, the case of retrial application are cleared and defined further, examination deadline is regulated definitely ,the party's right to know, to participate are definite, the sanction of examining amanuensis is enhanced. Second, studying the foreign relevant system, in civil law countries, though starting retrial litigation, it can correct the mistake of effective verdict. For example, by the provisions of the civil procedure in Japan, first, the court examine the legality of retrial litigation, if it lacks legal elements such as a retrial is not to determine a final decision, or retrial applicant have no legal right to appeal a retrial, or without the statutory period to bring such an approach, the court ruled that it should dismiss the request for retrial litigation, if the retrial is legitimate, the court should proceed with the retrial cases. Studying the foreign relevant system, according to the special condition of our country and drawing on their previous experience, we can perfect our examination procedure of application for civil retrial.The forth part is about comparative analysis between the examination procedure of application for civil retrial and related systems. The appeal retrial,retrial application and appeals,the examination procedure of application for civil retrial and civil retrial procedure are related but slightly different. If the appeal,retrial application,the examination procedure of application for civil retrial are unclear, the actual operation will lead to confusion. Far more important, from the appeal and then to retrial application, then to the examination procedure of application for civil retrial, its legislative intent on the progress of a retrial has been perfect for our system provides a more extensive legal space, but also for the establishment of our system to play against a retrial of a very important role as a bridge.The fifth part is about assessment of content and question on the examination procedure of application for civil retrial in our country. It includes examination of the main body of the applicant qualifications, the examination of the jurisdiction of the court, examination of the parties whether pursuant to Section 179 of the Civil Procedure provides that subject to apply for a retrial. But the current law provisions on the procedures, there are still some problems to apply for a retrial in the court, examination deadline,examination mode and so on, the existing examination procedure of application for civil retrial still need to improve further.The sixth part is about perfecting the examination procedure of application for civil retrial in our country. In this section first bring forward the basic path of perfecting the procedure, for the incomplete retrial of the appeal at a retrial, "second-order structure", the overall framework of improving the system level. Secondly, improve the specific idea of the examination procedure of application for civil retrial. Procedure should follow the principle of retrial matter as the core, at the same time establish the establishment of a retrial of a limited principle and the principles of openness, mainly in the form of examination, supplemented by a examination entity. Third, standardize the examination procedure of application for civil retrial, designing the alteration ways from the organization,the mode,the number of retrial application and so on.