On The Third Trial Procedures

The existing instance system which civil procedure law rules is the secondinstance being the final. However, the socioeconomic condition had been greatchanged because of Chinese reform and opening up of nearly thirty years. Under thenew historical condition, the second instance being the final is not suitable for thesocial development so that there are so many abuses and disharmony among systemsin current judicial practice. In recent years, the second instance being the final hasexisted in name only.The academic circles and judicial practice department have reached agreementto reform of instance system in civil procedure. Considering the relevantfundamental principal of civil procedure, most of experts and scholars agree toimplement the conditional third instance being the final. However, we still needsystematic study on the rationale of third instance and how to construct concretelythe third instance. Withal, this article scratches deeply to it from theoretical andtechnical view. The author utilize methods of comparative and empirical analysis andeventually issues game theoretic thinking on how to construct limited third instancein China by investigating the current Chinese instance system and the third instancein two legal systems. This article divides into four parts.Part one: it gives a brief introduction on the abuses of current instance systemin China and probing the theoretical basis of the third instance's establishment: thebalance between justness and efficiency, the unification of legal application. And onthe basis of these, analyzes the realistic basis of establishing the third instanceprocedure: social development with all-around, the justness idea's transformationand some lessons and legislation cases from another countries and areas withwell-developed legal system which have established the third instance being the final.And then points out its practical significances, such as ensuring the right of clients,insuring the realization of fairness and efficiency, being favorable for the unificationof legal application, upgrading the international impression of China courts and soon.Part two: it introduces some legislation cases on the third instance procedureoutside China. By comparative analysis to the third instance procedure of countrieswith civil law system which take USA and UK as representatives, countries withcommon law system which take Germany and Japan as representatives and Taiwanzone, obtains the cognition to the third instance in civil litigation, which can be usedfor reference to China legislation。Part three: This part is the core of this article which draws the outline of basictrain of thought on constructing the third instance in China. By more analysis andresearch to proceeding function of the third instance, points out the character of thethird instance shall be the trial for law, also be the trial after the event and the trial inwriting. In order to realize the unification of legal application, the author issues someconditions to limit the amount of cases which will enter the third instance. Forinstance, issuing the third instance under the condition of breach of law;carrying outthe permission policy;permitting clients to appeal skipping one instance when twoparties reach agreement;implementing compulsive deputy--lawyer policy;keepinginvariableness of hearing scope of third instance. Finally, discourses theinvestigation scope and methods of third instance.Part four: it discourses the rationality of existing the retrial system. In order tomake effective combination between the third instance and the retrial procedure, theauthor bring forward to reform and consummate the retrial procedure on the basis ofestablishing the third instance being the final so that we can reach harmony amongsystems.