A Tentative Research On Civil Retrial Procedure

In the process of civil litigation, the ultimate goal pursued by the parties in the lawsuit is to obtain substantive justice. However, in reality, even if there exist sound legal procedures, strict justice system and high quality judges, it is still difficult to completely avoid wrong judgments. Civil retrial procedure refers to the special proceedings to provide relief for those litigants whose legitimate rights and interests are damaged by wrong judgments. Complete and excellent retrial system should be able to achieve balance between legal correction and maintaining judicial authority. In the western countries, a complete retrial system has been established, but the retrial process in our country remains feature of official system, and many problems arise in practice. In order to truly protect the rights of the retrial procedure body, and to solve the difficulty of applying for retrial in actual operation, the new "Civil Procedure Law" was put into implement on April 1,2008, which contains seven amendments concerning retrial procedure and plays a positive role in solving the problem. On the other hand, however, the unblocked channel of retrying gives rise to a sharp increase in the number of cases entering for retrial, which causes a serious impact on the res judicata of effective judgments and puts the previously effective judgment documents in a precarious state of uncertainty. The fact that many disputes cannot find final settlement in turn causes a situation contrary to the goal "resolving conflicts, ending the dispute" of civil actions.Through defining the concept and value of retrial system, comparing with the mature retrial, systems in Western countries, the paper intends to assess the new amendments in China's new "Civil Law" retrial procedure from the perspective of limiting the relief scope of the procedure and building a reasonable relief structure. The paper also makes reasonable suggestions, trying to find a reasonable way to best coordinate the finality of the effective judgments of the courts and the retrial correction, thus maximally safeguarding the judicial authority and ensuring legal justice.This article can be divided into three chapters: Chapter I is an overview of civil retrial system. The theoretic foundation of the existence of retrial system includes:fairness is its value basis; the right to relief is the practical requirements; the rights of appealing and disposing serve as its power base. By comparing the retrial procedure and the ordinary one, analyzing the difference and similarity between the second trial procedures and retrial procedures of judicial supervision, the author gives a clear definition of the concept and function of the retrial process.Chapter II concerns the relief procedures on effective wrong judgments in the Content Law countries and English-American Law countries. Civil law countries, retrial system, focusing on the maintenance of private rights on the parties; common law countries, the re-trial system, pay attention to due process to resolve civil disputes, and reflected on the process to remedy defects. Experiences of Western countries carry much significance on the improvement of the civil retrial procedure in our country.Chapter III is a reflection and analysis of the present retrial relief system. By updating the ideology of "law corrective" concept; weakening the power of the private right of public interference, abolishing the court his qualifications retrial started to limit the scope of the protests of procurators; remove the meaning of vague uncertainty poor retrial subject; limiting the parties retrial of the frequency and duration of application, changing the name of the retrial process measures, we can improve the retrial system in our country to the greatest extent possible.