Retrial System - On The Administrative Retrial System

In order to guarantee right judgment of the court and correct errors in time ,most countries in mordern world prescribe retrial system in their civil procedural law ,of which there are two modes-adjudicatory supervision procedure(ASP)and rehearing on parties ' appealing(RPA),based on their own different steering principles and litigious logics.Romano-Germanic family,typically represented by German,France and Japan,usually adopt RPA as their civil retrial system.In respect to such a case,civil litigants enjoy the right of action in procedure and can initiate arterial procedure through appealing.In term of procedure system in strict sense,Anglo-American family haven' t provided such a retrial procedure,although they have established a kind of judicial supervision system besides contentious procedure.They advocate complete adversary proceedings and think that a court verdict, if based on the evidences presented and debated by parties and on the judgment of jury, is of truth and unchangeable.Adjudication supervision procedure, as a commonly adopted retrial mode in socialist countries such as in China, firmer Russia and European socialist countries, provides rehearing procedure based on the adjudication supervision right of certain government agencies and public functionaries,as regulated in our existing civil procedure law and administrative litigation law.With the establishment of our socilist market economy system and gradual advancement of political democracy and judicial modernization, both theorists and practitioners pay more attention to the performing and protecting of civil rights and the independence of litigant is attracting its due respect. While our litigious logics in the existing civil procedure law, which was made in the planned economy period, obviously cannot meet the requirements of democracy and constitutionality for market economy. Particularly, our existing adjudicatory supervision procedure, which embodies the doctrine of super function and super power and allows interferences with economyaffairs from government and involving of the Court in civil right disputes, severely violatrs modern civil litigious principles such as autonomy of private right and freedom of civil proceedings.Furthermore,our civil retrial initiating system is so simple and abstract that it lacks operating instructions,resulting in random initiating causes,periods and frequency.In practice, the disadvantages of ASP mainly include the followings: first, related litigant's reapplication,as litigious right of subject of initiating retrial,isn't forcefully protected,and the ASP haven't effectively acknowledged the parties' complaints.Meanwhile the ordained subjects of retrial,such as the court and its president and the procuratorial organization,arouse doubts about their neutrality.Secondly,without fixed causes, periods and frequence of initiating retrial,more and more valid verdicts are randomly changed and neglected,which severely affects their stability and authority ,and destroys the procedure of twice trial,thus influencing the base of our judicial authority and the process of our constitutionalism construction.In this paper,the author,employing value analysis,positive analysis,historic analysis and comparative analysis,explores the defects of our existing ASP system,and tentatively proposes his suggestion on transferring from adjudicatory supervision to RPA,so as to perfect our existing retrial mode.