On Application For The Retrial System Reform And Improvement

Judicatory, without effective restriction and supervision would lead to a disaster of fulfilling social justice. Misused jurisdiction will further cause not just the collapse of political stability but also economic. To this extent, it is necessary to establish a set of effective mechanisms to prevent the abuse of jurisdiction. The establishment of a retrial mechanism in the Chinese legal system thus aims to establish such a set of effective restrictive and supervisory mechanisms to efficiently safeguard the performance of jurisdiction. It becomes the last remedy at law for all the parties involved in civil litigation.The retrial mechanism, trial supervision, was first established in the Civil Procedure Law of the People's Republic of China and came into force in early 1991. In theory, it has played a crucial role of fulfilling the three harmonious: harmonious of substantive justice and procedural justice; harmonious of judicial fairness and efficiency with harmonious of judicial righteousness and certainty. Furthermore, it promoted the progressive development of modernization of China's legal system. Nevertheless, in empirical, it has exposed several uncertainties within the system over the last decade. First, the coexistence of the re -appeal system and the retrial mechanism has lead to the misuse of a party's right to apply for retrial. This runs counter to the original objective of establishing the mechanism. Second, two types of retrials have damaged the principle of party autonomy. One type arises from protests by the people's procuratorate and the other from retrial decisions from the various levels of people's courts. The conflict between parties' litigious rights and expanded jurisdiction that originates from the co -existence of the re -appeal system and the retrial mechanism leads to that applications for retrials do not work sometimes. Third, retrial procedures may be initiated easily and this creates uncertainty. This is further maintained by endless re -appeals and retrials as thesystem lacks an effective mechanism to achieve a final judgment. These situations have lessened the authority and effectiveness of judgments and orders. It is high time for the reformation of the procedural elements of the retrial mechanism.Several aspects should be considered when approaching the reformation of the procedural elements of the retrial mechanism. First, 'being practical and realistic' would be the general principles to guild the retrial process, this is to say that every error maintained in effective judgments and orders must be corrected. This will be discussed further in the article. Second, attention will be drawn to the reconstruction of the retrial mechanism in cases of appeal litigation by application of the appellant. The consequence of an annulment of the legislation of retrial cases could be protested by the people's procuratorate and could be initiated by any level of people's court. Third, this article proposes that to set up a model of how to distribute the rights of applications for retrials to adequately involved parties. In order to protect the third parties' legal rights from injuring, also it is necessary to provide them the right of applying for retrial. The paper will provide suggested options that may be legislated to bring about the necessary reforms. These include: i. ) No party to a legally effective conciliation statement shall apply for retrial; ii. ) No party to effective judgments or and orders of first instance shall apply for retrial; iii. ) No party to an effective National Supreme Court judgment or order shall apply for retrial; iv. )With respect to the cases of which could be applied by procedures for recovering a debt, for public invitation to assert claims, for bankruptcy of enterprises as legal persons, or those cases in which the arbitration award has been cancelled by an order of people's court, no parties shall apply for a retrial; v. ) Limitations and scopes of actions for retrial need to be defined. Applications for retrials by the parties should be filed within on...