Reconsideration Of Reasons For Retrial Of Civil Cases Of China

Regarding the needs of substantial justice and the understanding of judicial essence, a retrial procedure has been an important system of civil litigation. With the development of judicial practice and deeper understanding of the law on litigation, res judicata theory gradually draws attention. Res judicata theory of the stability of judgments, judicial system the authority and the overall effect of a civil action have a great role.The term res judicata is a loanword from Germany and Austria in the Code of Civil Procedure "Rechtskraft (determining power)" Res judicata theory can be said to be the end point of the theory of litigation. the target language. The so-called res judicata is to determine the final decision, the subject of legal proceedings appear on the parties and the courts to apply the mandatory power. It requires the parties to the former Court of Appeal in the subject of a judgment proceedings, shall not again dispute, the court shall not make a contradiction with the judge. Res judicata effect of the existence of a civil dispute was "fixed" a matter of dispute between the parties was marked with a terminator. If there is no case law in particular, are not allowed to have been the end of the dispute back into the proceedings.In general, "the identified final decision has the double protection of form and essence, the determination of such a double-edge protection made by a magistrate on the legal relations in a stable state." However, the force is determined appear in the premise of the correctness of their own, and if the lack of decision making to justify the basis of res judicata, it is necessary to set up a process to break the shell, to that end, all countries in the world the Code of Civil Procedure provides that "the civil trial process," in order to prevent and correct the wrong, the protection of the legitimate civil rights of the parties. Through a retrial, the court may deny the original decision, so that the parties receive a fair referee.Required reason to start the procedure is the eligibility and status. Civil trial reasons find the ground for judicial review, judge whether or not to start a civil retrial procedure and in accordance with the reasons, is against the terms of the retrial process. Referred to as res judicata the court to maintain the "firewall" and start the retrial procedure "key." If the parties can sue to allow, would seriously undermine the normal conduct of proceedings, subject retrial retrial procedures as the basis to start, start to assume a retrial from the negative side of the valve and the delineation of the scope of the role of res judicata.This article is divided into three parts, abstract, preface, text, conclusions, in which the body is divided into four parts.The first part of the body as the basic theory, the value of the retrial procedure outlined, revealing the purpose of setting a retrial procedure is about the pursuit of justice and judicial authority. For res judicata law of the three major Western abstract and important one of the basic theory, the author reveals the basis of res judicata as "institutional effectiveness" and "procedural safeguards" dualism of view, the time frame for the industry standard, the subjective and the scope of the parties and judges.The second part concerns the relationship between a retrial with the res judicata. In this paper, the procedures for civil retrial system is aimed at the pursuit of res judicata, retrial procedures and final goal of the consistency of res judicata, retrial procedures to safeguard the role of res judicata res judicata on the three dimensions of the relationship with the retrial. That reveals the retrial of the contact with the res judicata. The subject matter reflects that the legislators retrial after due process of the final decision made by the limits of tolerance defects. Res judicata from the negative side of the demarcation of the role of the border, it should be through the choice of procedure, the technical level to reflect the level of the value of the theory of res judicata that border.Part III is divided into civil law legislation to require a retrial subject. First of all, the way to cite a list of civil law in Germany and Japan, Austria, France, and China's Taiwan is civil retrial of the relevant provisions of the subject. Followed by a retrial of these countries have been the subject of assessment, the principle of res judicata is the most modern countries in the core of legal proceedings, as well as most of the criteria for one of the core values. It is pointed out that the civil law countries in order to protect the court's res judicata ruling already in force, mostly through a very strict setof conditions appear to change the entry into force of the matter for retrial.The fourth part of the reason for our further understanding of the retrial, the first of October 2007 my 28 "to amend the decision" in a retrial before a comprehensive description of the provisions, followed by combining research results in front of three chapters. Will be the subject of China's civil retrial retrial categories include a statement of facts and procedures of the subject matter categories, respectively, to assessment of a retrial. And that "the original decision, ruled that the fact that the main evidence was forged," should be divided into parties, litigation agent forged evidence and witnesses or experts, translators for false statements provided for both cases; increase in litigation due to agents and the other party, litigation and legal proceedings relating to the implementation agent of the criminal conduct of the retrial; retrial of the cases filed are not allowed by law to be provided for these three proposals.The concluding part of this article sums up the view that comparative law from the point of view that this revision of Germany and Japan to bring mature v. retrial of the matter has been drawing, but also based on the local two-trial system final pre-trial level. Speaking style from the Legislative Council to list-style-type with a general combination of both to some extent, for res judicata clearly delineated the role of the boundary theory, but also in line with the status quo of China's rule of law. On the theoretical level, the modifications focus on the subjective scope of res judicata and time limits of the scope, basic in order to justify the basis of res judicata is limited, would not be res judicata under the circumstances to justify a retrial as a subject, as to break the final form of the effectiveness of decision conditions to enter the retrial of the relief process. However, the relevant provisions of the system do not necessarily solve the problem of the retrial. Problems will be retried by the system of environmental constraints, and quality of judges and the parties are closely related to the demands of such. Therefore, the revised settlement of a retrial subject to the extent to which the "retrial difficult," "The Court does not end" issue, is subject to judicial practice to be tested.