Research On Remedy Procedure Of Flaws In Civil Judgment

As the concentrated expression of the trial procedure, civil judgments'make is an extremely serious and sacred piece of legal work. To maintain its finality, authority, stability, civil judgment once made should not be changed and set aside except by due process of law. However, flaws in civil judgment are the objective existence of trial practice. Based on the request to standardize proceedings and rationalize the procedural regime, to set up remedy system for judgment flaws in civil procedure law and amend them according to specific procedures is the common choice to resolve civil judgment flaws for the modern country ruled by law. As a unique procedure, the function of remedy procedure for civil judgment flaws is to continue the mission of the original trial proceedings and correct the flaws in original judgment standard in the precondition of endeavor to safeguard its stability.In China's present civil law, the regulation on relief approach for flaws in civil judgment is almost void. It just specifies that corrected rulings apply to the "clerical error". But it is difficult to meet the needs of judicial practice because of its narrow scope and lack in specific operational procedures. As for other civil judgment flaws, the parties can only place hopes on the appeal or retrial procedures. However, appeal or retrial as the remedy procedure for civil judgment flaws is contrary to the fundamental systems of civil procedure (for example, instance, res judicata, etc.) and related values such as judicial economy. On the issues of flaws in civil judgment, local courts explore their own solution in the case of lacking legal basis, with which there are still some problems:Individual district courts solve some of the flaws in the civil judgment judge by means of withdrawing the original judgment document to directly change or make over new judgment document with the same case number. This localized, disguised remedy approach is absolutely against the legal idea of due process & procedure stability and contrary to the binding effect of the judgment; The Supreme People's Court initiates solving part of the civil judgment flaws by the form of reply after trial. However, reply after trial as the relief measure for flaws in civil judgment still has no legal basis that is nothing else than breaking the law. Meanwhile, reply after trial is not conducive to the end of civil disputes in a timely manner which is undermining the independence of the judiciary and the judicial authority to a certain extent; In order to eliminate the phenomenon of judgment flaws, all over the courts carry out a variety of "zero error" projects, which plays an important positive role for the prevention of civil judgment flaws. However, if flaws really exist in judgment that has been served on the parties, there is still no feasible relief measure.The rational remedy procedure of flaws in civil judgment is a necessary requirement for trial practice, which has important practical significance in full use of judicial resources and maintenance justice. Herein, China should perfect its legislation on the remedy procedure of flaws in civil judgment as soon as possible. As flaws in judgment can be divided into five kinds of situations:technical flaws, fact flaws, law flaws, judgment hiatus and beyond the claims, our specific design of relief program for flaws in civil judgment should proceed from its specific type to set up different relief channels depending on different items. Of course, the full exertion of remedy procedure of flaws in civil judgment depends largely on coordination with other civil relief program (including appeal, retrial and so on) and juridical reason system.