On China's Civil Remand System

It is well known, the law has the substantive law and the procedural law difference, strengthens the legislative work, meant already must strengthen the substantive law construction, also must strengthen the procedural law construction, the two cannot emphasize one thing at the expense of another. But since long ago, our country in the legislation, the judicature and obeys the law and so on the aspect has the serious heavy entity light procedure phenomenon, the people lack the enough attention to the point of order, the understanding or does not have completely to know the procedure in the legal framework important position. Civil sends back examines an achievement procedural law system again its value does not take for the people. In fact, civil sends back examines the system to occupy the important status again in the legal procedure, it not only is implements two examines trials in final the principle specifically to manifest, moreover is the second trials people's court carries on to the first trial people's court examines the level surveillance one way.This article through to sends back examines the system again the discussion, the goal lies in strengthens people's procedure consciousness, enhances to sends back examines the system again the understanding, and theoretically sends back to our country examines the system to carry on the supplement again to consummate, the correction sends back examines the mistake again which exists in the practice, by instructs the judicial practice well. This article uses the theory and the practice unifies, as well as historical and the comparison method, emphatically discussed has sent back examines the system again the rationale and the research value, our country sends back examines the system again the legislation present situation, the characteristic as well as our country sends back examines the system existence again the main question and the countermeasure.This article altogether is divided five parts.First is an introduction.The first part outlined civil has sent back examines the system again the concept, the function and the characteristic, and to civil sent back examines the system to carry on the value analysis again, to sent back the research value which examined again to carry on the discussion. The second part first divided old Chinese, the revolutionary base time and new China and so on three stages specifically introduced our country civil sent back examines the system again. In 1910 "QingDynasty Civil action Law (Draft)" appearing, had finished the history which the civil action and the criminal prosecution procedure does not divide, has established the modern times China civil procedure law system, thus also produces including has sent back examines the system again in the modern significance Chinese civil action system. Before new China had been established under, led in the communist party organizes to compile "Republic of China New Civil procedure law Rough draft Guiding principle" to send back examines the system to carry on the system stipulation again. After new China had been established, until 1982 "People's Republic of China Civil procedure law (Implementation)" promulgating, only then confirmed by the legal form sends back examines the system again. In1991 was new "People's Republic of China Civil procedure law" to send back examines the system also to have the revision again. Simultaneously briefly introduced German, Japanese, English, American, French as well as our country Taiwan area civil sends back examines the system again, and civil sends back to these countries and the area examines the system and the our country present system again carries on compared to the education analysis, favor us to absorb its essence, supplemented consummates our country to send back examines the system again. Among them, Germany, the date related loses calls to account the power the stipulation, as well as the Taiwan area although has sends back examines the situation again, if the bilateral litigants are willing by the second trials courts from which but does not have to send back examines again to grade the content for the gauge the decision, all is worth us profiting from.The third part in detail elaborated our country present civil sends back examines the system existence again the question, while to suitably sent back the related question which examined again involves to carry on discussion, to sent back examines again in the practice the concrete utilization and has these questions reasons to carry on elaborated one by one, and proposed the corresponding countermeasure. The question mainly is, sends back the reason which examines again excessively to be many, overemphasizes take the judicial authority as the standard, still had the heavy entity light procedure tendency, and to sent back examines the case to examine again lacks the corresponding restriction measure. The corresponding countermeasure is, to sends back the reason which examines again to carry on the suitable limit, the increase stipulated the litigant procedure option, the prominent procedure independent value, to examine the case to examine the increase restriction measure again.Finally is the conclusion. Based on the civil action own characteristic and the union overseas legislation experience, sends back the reason to our country which examines again to be supposed to define is: The original decision recognized the fact is wrong or recognized the fact is unclear, evidence insufficient, The second trial people's court may in the appeal request scope from be a referee, but to does not harm the litigant to examine the level benefit to be limited to; The original decision is suitable the legal procedure to have the significant slight defect, the second trial people's court should abolish the original decision, sends back the case the people's court to examine again, but the litigant giving up calls to account the power or the bilateral litigants gathers Italy to decide by the second trial people's court, the second trial people's court should directly make the decision. To sends back the case which examines again, second trial people's court when necessity may issue the case the same level court to try.