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Study Of Civil Retrial

Posted on:2006-03-12Degree:MasterType:Thesis
Country:ChinaCandidate:J X LiFull Text:PDF
GTID:2206360182460019Subject:Law
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The civil retrial system in China was established in accordance with that of the former Soviet Union, which has a prominent feature of national acting. Since civil retrial system in China emphasizes the supervision of court and procuratorate, and neglects procedural right of the parties involved, many weak points of the system have emerged. To summarize, the weak points of the civil retrial system in China include the lack of restriction on retrial body, retrial premise, retrial durations retrial jurisdiction, retrial number of times, resulting in no end in suit and the serious destruction of judicial authority. Therefore, the reform of the civil retrial system in China is highly necessary.This thesis holds that procedural right theory is an important way to reform the civil retrial system in China. According to the theory, first of all, we should confirm the procedural right of the parties and then construct the new civil retrial system basing on it. However, the research on the procedural right theory is not mature in China at present. So it is necessary to make these conceptions clear such as procedural right, retrial procedural right and so on. In the end draw a conclusion that parties' procedural right, as one of basic human rights, is the premise to the civil retrial lawsuit.The civil retrial system is profound. The thesis mainly discusses the civil suit for retrial in the following aspects. The first question discusses the two periods of the civil suit for retrial. Compared with the procedure of first instance and second instance, the retrial procedure is ignited by the court or the parties. So we should adopt different regulations underthe two circumstances to make the structure of retrial procedure perfect. The second question is the object of suit for retrial. As the retrial procedure includes two periods, some scholars hold that there are two objects of suit in the retrial procedure. But in the author's view, there is only one object of the suit---the parties' claim for substantive rights. The third question is the object of retrial. The thesis holds that only legally effective judgment or order is the object of retrial, other litigation documents not included. The fourth question discusses the premise of retrial and concepts the principles of retrial defmately. The fifth question is the scope of retrial cases which should be limited reasonably. The sixth question focuses on the jurisdiction of suit for retrial. The author insists on that the case of retrial should not be within the jurisdiction of the court that has made the legally effective judgment or order, but within the higher court. The seventh question eyes on the starting period of the suit for retrial. The eighth question emphasizes the restriction on the number of times for igniting retrial. The author holds that the retrial system should set a principle prohibiting double retrial. The last question aims to set three principles to direct revising on the judgment or order in retrial.All in all, the preceding nine aspects include the main content of constructing the civil retrial system. But in the profound research ,there are still many complicated and valuable issues for us to survey.
Keywords/Search Tags:civil retrial, procedural right, procedural right to retrial, action of retrial, contruct
PDF Full Text Request
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