Reform Of Civil Retrial Study

In Our country code of civil law, the retrial procedures as a special relief procedures have been put in the heading "trial supervision procedure". As the trial supervision procedures, the core values of the magistrate to force a retrial, the trial procedures are used to call a retrial process. It should be pointed out that the retrial procedure is the legal proceeding that carries on reexamines on the effective decision, in pure theory, the right to trial or, more broadly, the legal power to supervise the retrial process, is the only one measure, but not always on dominant position. In fact, the case litigant applies for retrial based on the modern law idea subordinate to the basic human rights nature right of petition, initiates the retrial procedure to the main channel.In the long Chinese legal history, in a feudal system of rule of law, each kind of law mixes in together, the civil law and the criminal law can not be divided, judicial correction system has its place. Since the late Qing Dynasty to the KMT government, the retrial system draw typically from the civil retrial procedures idea which core is retrial procedures. The New Democratic Revolution time attempts the retrial system, is our country present retrial system seed. However, the same procedures will be re-examined in the trial supervision procedures, it is not the local cultural heritage law, but is subject to the impact of the former Soviet Union. Trial can be said is the inherent product of the former Soviet Union. The basic theory was to negate the existence of private law, stressed that state intervention.China's current civil law is the guiding ideology of "seeking truth from facts, mistakes must be corrected," reflecting our traditional "light procedures stressing the idea" which undermined the function. of process of law to end disputes. It ignores the time limit for resolving civil disputes, and violates litigant's handling principle. It undermines the stability of the magistrates, impacts the judicial authority, thus fundamentally undermines the legitimacy of the administration of justice.Civil retrial system takes "right wrongs by seeking truth from facts" as the guiding ideology for creating, inevitably be filled with deep authority. Right of parties ask for a retrial is swallowed.In the retrial subject of the civil law, entities wrong reason are too broadly defined, while procedural errors are too narrowly defined. Ignoring the intrinsic valueof this procedure is clearly should have been abandoned, for a procedural law which don't accord with procedure law is unjust.The existing civil procedural regulates the three main categories for law retrial, but in judicial practice, people's congresses at all levels, local government and even some of the political and legal committees and leaders or individual experts, and so on, may request the court for a retrial of the case. This diverse pattern denies party autonomy, break the balance of power between the parties to the case.Code of Civil Procedure has two-year deadline for the parties specifically ask for a retrial, but it has no explicit provision in the period on the people's courts and people's procuratorates for retrial. In the Course of the proceedings, the parties have the right of appeal, but the application does not directly bring retrial procedures, and it still needs a court confirmation process, but the law does not provide the process. Without public scrutiny, and when we decide to retrial and stop implementing the decision, the other party is also difficult to accept that, and it will be inevitable to cast doubt on the legitimacy of the review.Because China's retrial system has shortcomings, its reforms are essential. It is a positive reference to build civil retrial system by knowledge the retrial subject a representative of some countries and regions. Because our country law mainly continued the Mainland legal system, the civil procedure law of various countries in the mainland legal system had been stipulated the retrial system, so this article emphatically analyzed French, German, and Japan's retrial system. It is beneficial to consummate our country civil retrial procedure to draw from three countries' the civil retrial systems.Reformulates our country civil retrial system, we may do following several aspects:We should overcome the absolute wrong tendencies guiding ideology which is" right wrongs by seeking truth from facts," Reaffirm civil purposes, ensure the exercise of the right of the parties, establish and maintain effective balance between correcting mistakes judgment and stability, authority, achieve the balance of relief to flaw judgment and res judicata, coordinate social justice and order, which should be new guiding ideas of civil retrial system.In Modern judicial philosophy, the maintenance of res judicata is still a very coreprinciple. To safeguard Law order established by the judgment, enhance the authority and finality of a magistrate, our country's civil retrial system should be re-established. We should recognize the establishment of res judicata and build theoretical system retrial. In order to coordinate res judicata and the retrial system, we must correctly balance the relations, through the strict limit to retrial conditions to build the limited retrial system, to maintain the finality of judgment.Reconstructs the civil retrial system, must cancel court decision-making of retrial, attenuate procuratorate to retrial for appeal, only the party have right to initiate a retrial. When it involves the national interest or the social public interest case, procuratorial agency can has the right to ask for retrial as litigant's status prosecution.In accordance with China's judicial practice, it is proposed that the general requirement that civil retrial cited provisions retrial should be divided into three specific areas: one is former magistrate seriously violate the proceedings. Second, the original magistrate substantive damage on the interests of the parties involved. Third, the law applicable to an error in the initial decision. On this basis, then three areas cited to be explicit and detailed manner.Construction of the civil retrial, a retrial should not be repeated in the Civil Procedure Law, which established the principle that the final implementation of a retrial. It should be strictly limited the scope of retrial. Startup time will be limited to two months, since the client knows retrial starting date, but the expiration of two years from the effective date of the magistrate. Litigation may not take retrial.Normative procedures of retrial should be established on reconstruction of the civil retrial system. A rigorous review process includes two stages: The first phase of the review is the legality of retrial proceedings. Major review of whether proceedings conditions accord with retrial proceedings or not. he second is the examination retrial lawsuit, and then make the judgment.