By Civil Re-trying System And Reform

The civil re-trying system takes one kind to provide relief the procedure, was refers to the litigant, the People's Procuratorate, the People's court to already to have the legal effect decision, to rule or the mediation agreement, discovered the mistake, applied for, to mention the procedure which legally as well as how to re-try with decision re-trying is suitable. The civil re-trying system as a recovery activation referee's wrong special system, regarding maintains referee's fairness and protects the litigant legitimate rights and interests to have the very vital significance. Although the whole nation attention "Civil procedure law" the bill for amendment already passed, and implements in April 1,2008, but, the civil re-trying procedure as a result of own system design too principle and the system existence's congenital flaw, in the practice brings in the operation the difficulty and is not standard, objectively has hindered the civil re-trying procedure error correction function full display, causes the case "to trial in final not finally", the vacillation trials in final the referee already to sentence the strength, causes it to move toward one kind in the trial practice unlimitedly, to lose the standard the awkward region. Therefore, regardless of from the practical realm or the theorists, the civil re-trying system reform was still a current civil action system reform key point. The author experimental unifies China judicial reform in this article the reality, the present civil re-trying system's connotation, the value, civil re-trying system existence aspects and so on difficult position, from the reform mentality to the restructuring pattern, the exploration and the international legislation hasten with conforms to the Chinese characteristic civil re-trying system's legal countermeasure.First, in the civil system's outline part, the author pointed out:The civil re-trying system is to a litigant legitimate rights and interests special relief system, the civil re-trying system is in a civil proceedings abnormal procedure, the civil re-trying procedure civil action must pass through the procedure by no means that and has further limited the re-trying procedure and the trial surveillance's relations as well as the civil re-trying system existence value above this foundation; Second, re-tried system's historical vicissitude part in our country, the author from our country ancient times feudal society's re-trying system, our country new democracy society re-trying system,1957-between the-1982 civil re-trying system aspect elaborated our country re-tried system's historical origin, and analyzed our country emphatically in 1991 "Civil procedure law" re-tries system's content and present "Civil procedure law" about the re-trying stipulation content; Third, the following union civil procedure law bill for amendment releasing background introduction our country has re-tried the system's place of main innovation; Four about the re-trying system stipulation's insufficiency, the author from the certain concrete provision insufficiently scientific standard, have not been able to absorb, to lack aspects fully and so on certain essential standard design to the effective judicature experience to carry on the elaboration; Fifth, the final author from sets up "believes firmly really, corrects error legally" the guiding principle, civil re-trying matter's restructuring, civil re-trying main body's aspects and so on restructuring carry on the design to the re-trying system.