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Reflection And Reconstruction Of Civil Retrial Procedure

Posted on:2005-01-11Degree:MasterType:Thesis
Country:ChinaCandidate:C X LiuFull Text:PDF
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The Civil Re-trial Procedure refers to the procedure that the court, according to the law, re-tries the effective judgment or letter of mediation with evident defects and gives remedies. To avoid and correct the effective judgment with evident defects, our current civil procedural law regulates the Re-trial procedure specially in chapter 16. It can't be denied that for a long time, our Re-trial procedure has played an active role in protecting the right of appeal of the person concerned, in correcting wrong cases and realizing justice eventually. However, with the further progress of our legal modernization and the constant improvement of the civil procedural system, the drawbacks of our current civil Retrial procedure have arisen gradually in the following aspects, first ,the causes and conditions of re-trial are too general and vast, which isn't easily mastered in judicial process. Second, there are no limit of times for re-trial and no final trial for re-trial, which violate the stability of procedure and the power of effective judgment; Third, the power for re-trial of the court intervenes with the client's right of disposition; Fourth, the law hasn't defined clearly the scope of cases on which the prostrated protest. Fifth, which court has jurisdiction over the cases of re-trial hasn't been regulated cleanly .Sixth, the procedure of application regulates too coarsely and lacks operativeness. Seventh, the regulation that halts the execution of the Previous judgment isn't scientific. Eighth, the fact that free charge for applying for re-trial tends to over-action. All the above have seriously determinate the authority of judicial and damaged the honor of the law, together with the power of publicity of the court. Therefore, it is imperative to restructure the civil Re-trial procedure.It is beneficial to use the successful experience and doings at home and abroad when we restructure our civil re-trial procedure. By comparison and analysis of civil re-trial system in some main countries and districts, we can find the following common features they share: First, the subject of initiating the re-trial procedure is usually theclient. Second, there are strict and definite regulations for the reasons for civil re-trial. Third, there're flexible time limit for the shortest and longest application for retrial. Fourth, there is special court for the jurisdiction over re-trial. Fifth, they usually don't halt the execution of the previous judgment after initiating the re-trial procedure. Sixth, there's generally limit of times for re-trial. The above successful experience provide affluent practical grounds when we restructure our re-trial procedure.It is essential to establish the idea that the re-trial system should exist under the current circumstances in china, to correct the one-side perspective that we use the third final trial to replace the second final trial plus the re-trial and that we completely remove the current civil re-trial system. Mean while, the following four principles should be implemented. First, respect autonomy of will and reduce the state's intervention. Second, emphasize the procedural stability and maintain judicial seriousness. Third, stress the principle of action efficiency. Fourth, the principle of limited times for re-trial. Based on the above viewpoints, I think our civil re-trial procedure should be restructured from the following aspects: First, change the name of "Trial Supervision Procedure" to "Civil Re-trial Procedure". Second, change the directory thought "Seeking things as they are, Correcting every mistake" to "Seeking things as they are, correcting mistakes cautiously", Third, reinforce The client's right of applying for re-trial, cancel the regulation that the court initiates the re-trial according to its authority and confine the scope of causes protested by the procutorate to only those cases related to jeopardizing the interest of the state and the social public. Fourth, straiten the reasons for re-trial, regulate both the procedure and the entity, make it clear that th...
Keywords/Search Tags:the Civil Re-trial Procedure, Trial supervision Procedure, Stability of procedure, the power of effective judgment, limited Re-trial.
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