Improve The Civil Retrial Start Thinking Of The System

This paper gives, from four aspects, a thorough discussion on the Chinese system of starting civil retrial in the light of modern theories of civil lawsuit-the origin,main body, time limit and times.Part Ⅰ is about the origin of civil retrial. Afrer an analysis of the drawbacks like decision pretrail, stress on entity substantive and neglect of proceedings, the author goes on to point out the primary reason for it is the present system of civil lawsuit overlooks proceed ing value, and dwell on the relation between procedure and verdict as well as proceeding value. It is pointed out that procedural justice has a positive bearing on judge result. The more justifiable procedure is,the fairer the result is and vice versa, the author gives an exposition, in accordance with the minimum procedural justice standard that is generally accepted internationally, of the basic principles of fair proceeding. It includes neutral position of the judges, equal position of the litigant, procedural participation, publicity and efficiency. The author draws on some foreign legislative instances concerned and puts forward a sound legislative idea, which can manifest procedural fairness and is also workable.part Ⅱ is about the main body. The author gives an analysis of the pluralistic characteristics of starting civil retrial, the PeopiF s Court of Justice and People's Procuratorate may start civil retrial in conformity with their powers, the litigant may start it indirectly by appealing to the People's Court of Justice and People's proruratorate.Besides,the author holds, in accordance with the basic theories of division and purpose of procedural functions and judge validity, that the idea of the People' s Court of Justice as the main body violates the principle of neutrality, deprives the litigant of discretion, and spoils the restraint of resjudicata on the People' s Court of Justice. Therefore, the stipulation of the People's Court of Justice as the main body of starting civil retrial should beabolished completely, In addition, according to the relevant theories of just claim and that the People' s Procuratorate is the legal supervisot, the author holds that its being the main body is contrary to its functional property, and violates the basic requirements of civil lawsuit concerning just claim theory. This is an improper intervention of the litigant's discretion. Meanwhile, it goes against the genuine purpose, procedural fairness and beneficial value of civil lawsuit, Therefore,the author advocates a complete abolishment of the people's Procuratorate as the main body, And in the light of the just claim theory, the author holds that it is the litigant who has the right to request the People' s Court of Justice to judge civil litigation and who is the legal main body of starting civil retrial.Part Ⅲ is about time limit.It says the Chinese system of starting civil retrial is affected by the idea of material truth and lacks time limit. This causes Prolonged judicial resolution of a great number of cases and low procedural efficiency. The author holds that civil lawsuit proceeding is not only the tools to find out truth but has its value. It should demonstrate procedural fairness and meet the requirements of procedural efficiency, hence should have time limit. Besides, the author draws on some relevant foreign legislative instances and proposes the establishment of time limit for starting civil retrial in China.Patr Ⅳ is about the times.It is pointed out that there is no stipularion concerning times for starting civil retrial in China and hence causes repeated trials and affects judge authority. The author holds that retrial,as a special relief proceeding, should not go on endlessly and should be strictly restricted for the sake of judge authority. The author also proposes, by drawing on some foreign legislative instances, that retrial should be the last instance instead of being repeated.