On The Reconstruction Of Civil Retrial Procedure

As being a special procedure for correcting and remedying, civil retrial procedure isan inherent requirement for keep justice, and the last method to protect the party's legalrights. Civil retrial procedure is important in judicial action. It can't be denied that for a long time, our Re-trial procedure has played an activerole in protecting the right of appeal of the person concerned, in correcting wrong casesand realizing justice eventually. However, with the further progress of our legalmodernization and the constant improvement of the civil procedural system, thedrawbacks of our current civil Retrial procedure have arisen gradually in the followingaspects. It obstruct the independence and just of judicature. This article approaches the Civil Retrial Procedure from its status in procedure ofaction and its function. After analyzing and comparing the development of the retrialprocedure both abroad and at home, the author propose his own idea in reconstruction ofretrial procedure. The whole article is made up of 5 parts: Chapter 1 is a summary of the civil retrial procedure. It introduces the concept ofthe civil retrial procedure, and the characters of the civil retrial procedure. The civilretrial procedure is a remedy system, which corrects and effective judgment, but not anormal procedure. This chapter analyses the function and value of the civil retrialprocedure, the civil retrial procedure is a special way for keeping the lawsuit justice.There are three functions, remedy, supervise and guarantee, in carrying out the finalprocedure aim. Chapter 2 makes a comparative study on foreign civil retrial procedure. It inquiresinto the similarities and differences in subject, cause, and jurisdiction with comparing thecivil retrial procedures of Germany, France and Japan.It analyses the characters of thecivil retrial procedure based on the theory and system, in order to use the experience ofother countries for reference. Chapter 3 analyses the defects of the civil retrial procedure in our country. There aresome defects of the civil retrial procedure not only in legislative principles, but also inconcrete systems, and they block the function of the civil retrial procedure. The principleof "judicial mistake must be eradicated"is a little biased; the subject of retrial procedureshows thick authority; the cause of the retrial procedure is over-broad, and lack ofnormal standard; unclear of jurisdiction in retrial procedure; without limits of times, andso on. It is necessary to reconstruct the present civil retrial procedure. Chapter 4 studies the theory basis of building the civil retrial procedure. Reestablishthe theory basis of the civil retrial procedure is a premise of improving the system ofcivil retrial procedure. It is necessary to build a civil retrial procedure, which keep fair,efficiency, stable in balance. At present, there are some obvious conflicts among thesethree value principles. As to the civil retrial procedure, it is same important in proceduralfair and in procedural efficiency, in procedural fair and in procedural stable. Chapter 5 gives a plan about reestablishing our civil retrial procedure. We shouldexchange the legislative guiding principle of Chinese civil retrial procedure, from"judicial mistake must be eradicated" to the new principle, "making a balance betweeneradicating judicial mistake and keeping effective judgments stable". The chapter raisessome concrete measures for improving the civil retrial procedure: to reform thequalification of the subject in initiating the civil retrial procedure; abolishing thequalification of judgers starting the civil retrial procedure based of its functions andpowers; the qualification of the subject in initiating the civil retrial procedure forprocurator is limited on suits for public welfare; giving parties enough rights for startingcivil retrial procedure; defining causes for starting civil retrial procedure; building thejurisdiction for civil retrial procedure; giving a limited time for starting and hearing acase in civil retrial procedure.