China's Civil Litigation System Of The Look Of Final Appeal And Remodeling

"Final judgment does not mean final" in operation of second trial final judgment system of civil action in our country is common occurrence. Continuous repeat of judgment is joked as "turning cake" among the people. The defect lies in that the final judgment court is too low to guarantee uniform application of law, current jurisdiction principles cause serious interference of local protectionism, remedy of defect of second trial final judgment with trial supervision procedure damages effect of judgment, effective legal document is difficult to implement, lawsuit efficiency and lawsuit economic value orientation are gradually disappearing. The origin of serious problems in the second trial final judgment operation mechanism lies in the defect of setting of the second trial final judgment itself. This article intends to put forward basic visualization of re-setting of third trial final judgment through survey and analysis of current civil action final judgment system of our country.To re-design civil action final judgment system, it is necessary to gain a higher idea, namely, guidance for civil action purpose. From the point of view of "proper procedure", the procedure guarantee theory considers the justice of civil action comes from justice of its proper procedure, and the process itself is the purpose of civil action. The reason is, whether the judgment is correct or not relies on standard for evaluation, and can never be validated, and the entity method has many unsatisfactory factors and keeps changing. In terms of facts of cases, human beings are not capable of repeating the facts completely, and therefore, have to use legal mechanisms such as "probative responsibility" and "evidence rules". Application of these mechanisms can not determine the authenticity of the cases either in methods or in process, and the result just accords with certain consumption which is an unavoidable compromise in legislation. Therefore, it is necessary to pay attention to the appearance of justice, namely, the procedure itself, rather than seeking for a judgment result with validity unable to test. People only need to pay attention to whether the procedure itself isproper, and the justice of the result will be logic conclusion of justice of procedure. Justice of procedure in lawsuit lies in opportunity of participation of the related. Classical oyer claim lies in emphasizing that the party enjoys opportunity of statement, and more important, emphasizes to guarantee that the lawsuit participants are able to make statement which can be taken as basic facts in various procedures of judging his rights and interests, which means, if necessary, the party can repeatedly use the right. History of law development tells us that accurate positioning of justice goal has witnessed long replacement of conception. It is through unveiling the relation between entity method and procedure method that the unique value of procedure justice has been found. The unique value of procedure justice is summarized in the necessity of reform of final judgment, namely, re-setting of third trial final judgment system of our country. Therefore, procedure guarantee is the core idea of guiding setting of third trial final judgment system of civil action.Lawsuit justice, lawsuit efficiency and procedure stability are the three values of examination and consideration of third trial final judgment system of civil action. Modern judicial activities include consideration and respect for justice first. Factors restraining lawsuit efficiency includes static factor (namely length of cycle, miscellaneous nature of lawsuit procedure application, expenses of lawsuit and justice rate of judgment result) and dynamic factor. Dynamic factor refers to judicial profit is realized with participation of specific or unspecific personnel, and directly influenced by understanding and action of lawsuit body and judge. At present, it is the dynamic factor which is invisible and not understandable that influence lawsuit procedure mostly, which is reflected in the form that "final jud...