New Evidence In The Civil Retrial Procedure In China

Modern civil procedure pursuits procedural justice, after the court's judges come into force, determination and resjudicata are automatically generated, which shall not be randomly modified or revoked. However, because of the complexity of civil cases and some other reasons, the effective judgment may not be correct even after the first and the second trials. In this case, the effective judgment needs supervision and amendment, the Civil Procedure Law of China achieves this supervision and amendment mainly through retrial procedure.Because new evidence is one of the reasons to start retrial procedure, which is quite common in judicial practice, it has been given a particularly profound justice mission. However, the provisions of our current civil procedure law on new evidence in retrial procedure are very limited, also the legislature has clearly lagged behind the development of legal theory, which cannot guide and standardize the use of new evidence.Common law countries have historically upheld the values of due process, who believe that the referees eannoi be questioned, so there is no retrial process or any problems on the adoption and application of new evidence. Civil law countries generally establish retrial procedure, but it is strictly restricted. Generally speaking, only when the referee is seriously wrong that retrial procedure can work. But the use of new evidence to the retrial procedure is very limited, which is also strictly restricted. According to the legal status of our country, it is very necessary to bring the subject of new evidence into the scope of causes of retrial.It is difficult to grasp the new evidence on retrial uniformly, on the whole, the main point is restrict it strictly. New evidence must accommodate some demands to start the retrial, especially the time of the new evidence produced, subjective mind of the litigant as well as the probative force which is provided by the new evidence.Otherwise,the Law of Civil Procdure stipulates that 3 kinds of subjects have the right to start a round of retrial,except that the person concerned can apply for the courthouse to start one, People's Court as the judicial organ and the People's Procuratorate as organ of legal supervision can start retial as well.IT seems that the diversity of retrial initial subjects provide the person concerned with more relief pathways,And it sets more supervision for the judgment of the court, however, in fact, a series of troubles are caused. As a result, it is quite a necessity to reform the diversity of the retrial subjects and confine the scope of application of the new evidences initial subjects strictly and seriously.First,cancel the People's Court's right to initial retrial as its authority.Secondely,confine the scope of procuratorial organ's judgement and supervision, in cases concerning the state and public interests,as long as the procuratorial organ determines them effective and harm the state and public interests,it is then entitled with the power to lodge a protest against the people's Court's judgments;however,when it comes to common civil cases,The procuratorial organ has no right to lodge a protest against the people's Court's judgments,and the new evidences should not be quoted as the cause of retrial by the procuratorial organ to initial retrial.Thirdly,set up retrial lawsuit.Guarentee the right of retrial of the person concerned,And as the cause why the concerned person initial a retrial, new evidences are proposed by the court in the lawsuit of retrial,and the court would investigate the conditions.