Study On The Civil Retrial Procedure

As a remedial procedure of the law case cognizance after the event, the civil re-trial procedure holds the balance to all of the civil action system. The re-trial procedure has been ordained in chapter 16 of the code of civil law presented. For a long time past, the civil re-trial procedure has made positive contributions for correcting the wrong in judgment, protecting party legitimacy rights and interests and keeping the justice honesty. However, along with the modernization course of legal system and the perfect of civil action system, in our country the abuse of civil re-trial procedure is being conspicuous gradually. In this article, by means of analyses of the procedure value and the aim of the civil action and systemic review of foreign civil re-trial procedure, author has expatiated exist problems of theory base and system construction of civil re-trial procedure in our country, put forward the principles of limited re-trial in civil action, therefore to restrict public right power, constitute a civil re-trial procedure base party litigant right, and realize the organic conformity of value of the civil re-trial procedure.The article is divided five parts: 1. A summarize of the civil re-trial procedure, to introduce the basic problem of re-trial, and to review the developmental history of civil re-trial in our country. 2. To analyse the theory base for establishing the civil re-trial procedure, by means of the analysis of different theories of procedure value and aim of the civil action, author recognized that to set up the civil re-trial procedure should be organic combine between litigation honesty and benefit, the aim should be to resolve dissension. 3. To compare the civil re-trial regulates in two law systems, we can find their characteristics as follows: Firstly, to allow to institute re-trial in every country, which is a limit to res judicate system without fail. Secondly, the disposal right of the party is very important, if the party do not open the door of the civil re-trial, the justice departmenthave no right to open it. Thirdly, in every country, there are very strict detailed conditions to the institute of the re-trial, for keeping stabilization of the procedure. Lastly, it is emphasized and vindicated that all of outcome, authority and stability of effective judgment is relative, all of the country search a pivot between to vindicate the authority of effective judgment and to seek justice honesty, to harmonize and unify both sides. These successful experiences have provided abundant practice foundation for reconstructing the civil re-trial procedure in our country. 4. There are some problems on the civil re-trial procedure in our country: (a) the guidance ideas have warped, (b) The selection of value is improper, (c) The national authoritarianism are wide in range on startup main body, justice authority has been destroyed, (d) The regulates of the re-trial are ambiguous and be difficult to hold them, (e) The regulates on startup re-trial times, time, grade and range in the re-trial procedure are too simple. Due to exist these abuse, bring about the case enter an infinite circular state. 5.To restructure the re-trial procedures have been put forward. It is necessary for justice benefit, res judicate and to resolve civil dissension. Its content consist of to restructure the guidance idea, means "be practical and realistic, every wrong will be righted" renewed pitch "correcting the wrong according to law, to vindicate the stability of effective judgment"; to restructure the theory base, as well as to construct the theory base of litigation and disposal rights of party; to restructure the specific systems viz to establish the litigation of re-trial limited, including startup main body limited, startup re-trial reason limited, domination court limited, re-trial times limited, institute re-trial limited and re-trial range limited.