On The Reconstruction Of Civil Retrial Procedure

Procedure of judicial supervision of civil litigation performs an important function on protecting parties' lawfull rights and interests and realizing judicial justice,but it has caused a number of practical difficulties because of problems in legislative plans and guiding principles.This work starts from studying the basic theory of procedure of judicial supervision of civil litigation,and then analyzes its' malpractices and answer why those malpractices could exists. On the basis of using overseas counterpart for reference,this work attempt to reconstruct our procedure of judicial supervision of civil litigation.This work proceeds as follows:Part Ⅰ provides a general description of basic theory of our procedure of judicial supervision of civil litigation.First of all,it introduces our understanding about concept of procedure of judicial supervision of civil litigation .And then,it analize the necessity of seting up procedure of judicial supervision in civil litigation by analyzing the fuction of procedure of judicial supervision and the ralation between procedure of judicial supervision and res judicata principle. Part Ⅱ analyzes comparatively our procedure of judicial supervision and the overseas counterpart.This part introduces respectively the procedure of judicial supervision in France , Germany and Japan,and then make compary each other to induce experiences usefull to reconstructing and perfecting our system.Part Ⅲ analyzes this system's malpractices and answer why those malpractices could exists and introduces influence of the principle of "seeking truth from racts and all errors must be corrected".It make a comprehensive review and analysis to mainbodies ,reasons,terms,numbers of our procedure of judicial supervision as well as the relation between domination of procedure of judicial supervision and suspending enforcement.PartⅣ reconstruct and plan our procedure of judicial supervision.This part puts forward the following scheme: deprive of courts' power to start up this procedure,restrict the extension of procedure started up by inquisitors,perfect conditions of application to this procedure by parties,make the third parties have right to start up the procedure.The core of my reconstructing is seting up the suit of judicial supervision,specify the formal factors and the substantial factors of starting the procedure,provide the reasons of starting the procedure,provide that this procedure include three phases:accept case,hear case to decide main content of judicial supervision is in coming into existence or not and hear the case again.