Retrial Theoretical Reflection And Reconstruction Of The System

In order to correct wrong judgment, our country has set up the civil retrial system. This system had once played an important role in guaranteeing judicial impartiality and maintaining the uniformity of the national laws. Due to the effect of the traditional legal system ,the civil retrial system of our country pays excessive attention to the wrong-correction function, whereas neglects the power of final adjudication and authority of res judicata. With the development of Chinese market economy and continuous deepening of judicial reform, the malpractices existing in this system itself is gradually becoming visible. In recent years, the theoretical and judicial circle has proposed many different concepts for the matter of how to rebuild Chinese civil retrial system. In this paper, the author tries to start with the present situation of Chinese civil retrial system, conclude its characteristics, analyze its malpractices, turn over to think about its theoretic basis, and finally propose the theoretical basis for rebuilding Chinese civil retrial system and suggestions for its legislation.This paper is divided into five parts. In part 1 the author describes the characteristics of Chinese civil retrial system. Through analyzing the contents of civil retrial specification and in combination with judicial practice, the anthor concludes that the two big characteristics of Chinese civil retrial system are strong color of doctrine of function and power and endless retrial; In part 2 the author analyzes the malpractices of Chinese civil retrial system. The author proposes the two big malpractices, i.e. the expansion of public power violates the modern legal system such private right autonomy, separation of lawsuit from trial, trial independence, etc. and endless retrial sacrifices the value of civil lawsuit procedure such as procedure impartiality, order stability, procedure freedom, procedure efficiency, etc.; In part 3, the author turns over to think the theoretical source of many malpractices existing in current civil retrial system is the effects of the concept of traditional lawsuit starting from national selfish departmentalism, the guiding ideology of "seeking facts from truth and all wrongs must be corrected" and the legal concept of "attaching more importance to entity than procedure"; In part 4 the author describes thetheoretical basis for rebuilding Chinese civil retrial system. The author proposes to correctly recognize and well handle such six big relationships as between impartiality and efficiency, objective authenticity and legal authenticity, power and right, entity impartiality and procedure impartiality, wrong correction and authority of res judicata and between supervisory authority and judicial authority so as to make civil renal gradually move from "attaching more importance to impartiality than procedure" to "impartiality first with concurrent consideration of efficiency", from objective authenticity to legal authenticity, from "attaching more importance to entity impartiality than procedure impartiality" to "paying equal attention to entity impartiality and procedure impartiality" and from "all wrongs must be corrected" to "wrongs must be corrected legally", embody the constitutional spirit of right autonomy and power restriction and observe the judicial principle of judicial authority independence. In part 5 the author proposes legislative suggestions about rebuilding of Chinese civil retrial system. The author suggests to pay attention to absorbing the scientific and reasonable legal theory and judicial concept of the two big law systems and finally build a modern civil retrial system that takes appeal to retrial as the starting point, takes the parties concerned as the initiating subject, has definite and specific legal cause for retrial, scope of retrial and jurisdiction of retrial and fixed retrial time limit and effect of retrial judgment and is suitable for the actual need of social and economic development of our country with respect to the malpractices existing in Chinese current civil retrial system.