On Civil Retrial Start The Reconstruction Of The Program

The civil retrial means a kind of procedure which the court makes judgments in the light of when the court, the procuratorate and prosecutor start or apply for retrial as they find substantial or procedural error in the effective judgments .Such a kind of system has maintained juridical equality, achieved social justice, and protected legal rights of prosecutors .Our pitching procedure of civil retrial learns from Former Soviet Union ,and emphasizes the power of state organs. So it ignores dispositions of prosecutor ,attaches much importance on law supervision of court and procuratorate ,and is not able to adapt to social marketing economy so that it needs informing .The article makes a deep analysis on our pitching procedure of civil retrial from subjects ,reasons and deadline on the base of defects in present procedure of retrial .This paper tries to better our civil retrial acting on the theory of "res judicata " and prosecutor's dispositions to serve for juridical harmony .The article illustrates our present pitching procedure of civil retrial from subjects, reasons, and deadline .Then it analyses the main defects existing in civil retrial, including wrong guiding ideology, indefinite reasons, conflicts between supervision and dispositions, and the lack of procedural assurance for prosecutor .With the eyesight turning to abroad ,it explains the system of civil retrial in France ,Germany , and Japan .Then the pitching system of civil retrial that in the three countries and in our country is compared in order to look for something which we should learn from those countries.In the following part ,it analyses the fundamental theories for informing our pitching procedure of civil retrial .One is "res judicata "from traditional mainland countries which emphasizes the binding force of judgments both to the court and prosecutor . Building system of "res judicata"can relieve the burden of prosecutor, keep stable procedure and maintain juridical authority .According to such a theory, we need balance the final judgments and substantial justice to rebuild our system of retrial .The other is the theory on dispositions .Freedom of mind is one of the three fundamental principles in western civil law since 17^th century, and has influenced later legislation on civil law of different countries. Procedural dispositions of prosecutors shows their freedom of mind in the field of civil procedure .The prosecutor is entitled to decide whether to sue or not as his substantial interest is involved .According to this theory, the strong power of the court and procurator ate to start retrial procedure should be informed in our pitching procedure of civil retrial.Finally it proposes specific advice for rebuilding our pitching procedure of retrial on the base of former analysis .As to the subjects , the interfere of court should be denied and restricts the participation of procurator be ristricted ;as to the reasons ,11 kinds of reasons when the prosecutor applies for retrial are pointed out ;as to the deadline ,foreign countries's legislation is worth imitation;as to the procedure for court investigation , the rules of jurisdiction, objects of investigation and the manner are pointed out .To inform the pitching procedure of retrial is not to eliminate or restrict the function of civil retrial ,but to guide its operation in order to achieve its value as much as possible .