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Research On Remand The System Of Civil Procedure

Posted on:2011-11-04Degree:MasterType:Thesis
Country:ChinaCandidate:W Q LongFull Text:PDF
GTID:2166360305981411Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
Civil action rehearing system, an important part of civil procedure system, bears the value of supervising the operation of civil procedure, protecting the trial-level interests of the parties, and maintaining a stable trial-level system. However, it is also a litigation system with negative return, having negative effects on immediate resolution of disputes and stability of social relations. In civil proceedings, excessively repeated rehearing will only bring the relationship between rights and obligations of the parties into a state of uncertainty for a long time, resulting in unnecessary waste of social resources. In this case, civil action rehearing system has its own contradictions since its birth: on the one hand, it aims to preserve substantive justice through the maintenance of procedural justice; on the other hand, it has to subject to the goal of judicial efficiency, trying to avoid unnecessary increase in litigation costs and extension of litigation cycle.Since its establishment, China's civil action rehearing system has played a significant role in correcting errors of the lower courts, and safeguarding the procedure interests of the parties. However, due to the limitations of the legislation itself and the social environment changes, there tends to be a greater number of civil action rehearing proceedings and a higher rate of rehearing. To some extent, rehearing has been abused, which has swerved from the principle of judicial efficiency and caused a waste of judicial resources. Therefore, our civil action rehearing system calls for further reform and improvement.Otherwise than the introduction and the conclusion, the paper falls into five parts:The first part is to make theoretical exploration for the civil action rehearing system: first of all, it introduces the basic concept of civil action rehearing system and its content, and points out the legal consequences when the second instance court decides a retrial. That is to say the trial invalidates the proceedings back to the untreated state. Then it goes with an in-depth analysis of its procedure value and its significance from the theoretical value of civil action rehearing system; next, by comparing the civil action rehearing system and related systems, it clarifies the similarities and differences among the civil action rehearing system, the civil appeal system and the civil retrial system, and demonstrates the unique procedurally protective effect of civil action rehearing system. The second part is inspection and comparison about the legislation and practice of civil action rehearing system in other countries. The author mainly introduces applicable cases of civil action rehearing, and the jurisdiction and regulations after rehearing in the continental law countries and the common law countries, and summarizes their separate characteristics. Secondly, by summarizing differences of the civil action rehearing system in the two legal systems, the author analyzes the economic and cultural background of the main continental law countries and common law countries, and then draws a conclusion that civil action rehearing system's design and operation are in accord with national conditions.The third part is to explore elements that should be taken into account in establishing civil action rehearing system. Civil action rehearing system, as a relief system of civil litigation, its existence in specific social environment makes its design and operation impossible to avoid the influences of various factors. First of all, from the judicial efficiency and judicial philosophy, the author analyzes how they impact the establishment of civil action rehearing system. Secondly, as a system running in real life, civil action rehearing system is under the influences of a national economic situation and traditional legal culture. And the analysis of the design and operation of civil action rehearing system from the perspective of law economics and law ethics provides a new perspective for further analysis of China's civil action rehearing system.The fourth part clarifies China's civil action rehearing system. Looking back, rehearing system has always existed in our country's legal practice and the Civil Procedure Law of PRC was developed from the summary, inheritance and promotion of the civil legislative and judicial practice in the base areas during the new democratic revolution. Through the exemplification and analysis of our current provisions in the Civil Procedure Law of PRC, it will be found that the present civil action rehearing has disadvantages, such as roughness of legal provisions, weakness of maneuverability, confusion of rehearing reasons, tendency to ignore procedure, lack of institutionalization of civil rehearing, incompleteness of system requirements, and lack of coordination with fast social development. Therefore, urgent reform and perfection is needed for the civil action rehearing system.The fifth part is author's proposals about the improvement of China's civil action rehearing system. First, it establishes the basic principles that the reform of the civil action rehearing system should follow. Namely, the reform of the civil action rehearing should proceed from the parties to maintain the parties'right to choose procedures. With judicial efficiency as the reform objective, it pursues the rational allocation of judicial resources. On the basis of fully considering the actual situation in China, it improves the civil action rehearing system. For practical system, from the aspects of the civil action rehearing system itself and related systems, it aims to build multi-level system of trial, scientifically clarifies the relationship between the first trial and second trial and determines the reason of civil action rehearing. It also cancels rehearing in the rehearing procedure, gives enough respect to the dominant position of the parties, provides the parties'right to choose procedure and makes a suitable regulation on the application of the qualification. By exploring these reform proposals, the author hopes to make a positive impact on the improvement of China's civil action rehearing system.
Keywords/Search Tags:Civil Action Rehearing, Judicial Efficiency, Civil Procedural Vedict, the Right to Choose Procedure
PDF Full Text Request
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