Discussion On The Function Of Civil Retrial Procedure In China

On Oct.28th,2007retrial procedure of civil action is significantly modified inCivil Procedure Law. The problem of difficulty of complaints is solved successfully,and the function, purpose and guiding ideology of civil retrial are set new requests.Four functions of civil retrial procedure are proposed and the expressions of that arestated in this paper. Based on the comparative law and practical experience, feasiblesuggestions of practical issues are provided, and the value system of civil retrialprocedure is built in conformity with functional orientation.Function of error recovery is the original purpose of building civil retrialprocedure in China. Compared with the two retrial ways which are achieved by theprotest of procuratorate and authority of the court, civil retrial mainly comes from theapplication of civil retrial done by the party to the people’s court. Compared to thecase with legal error and illegal procedure, case of retrial relating to ascertaining thefact becomes difficult and complex, for the cognizance of degree of proof and reality.From the development and production of the function of error recovery, the importantsignificance of the defining for new evidence of retrial is achieved. During the stageof retrial review, new evidences shall be reviewed through strictly form essentials andpartially substantial essentials, and doctrine of evidence submitted timely is graduallyestablished by retrial legislation to ensure the power of inducing evidence in litigation,avoid sudden litigation and improve the litigation efficiency.From the point of protecting res judicata and steadying the social relationship,the times of retrial for the same case shall be limited. Meanwhile, practicing systemof jurisdiction with giving priority to the increased level of retrial and complement ofthe same level, the standard of cause and the scope of the trial which are proposed byorgans of power shall be regulated.Courts in China pay attention to judicial activism and the unification of socialeffect and legal effect. The mediation work of retrial procedure has more features anddifficulties. While preference to mediation and the combination of mediation and judgment is positively being realized, the excessive pursuit of the rate of settling casesthrough mediation shall be prevented. Judicial activism shall be strengthened, and thepower to clarify shall be properly advanced in the trials of first instance and secondinstance, contributing to clear the burden of proof for the party and legal factspreferably. Retrial caused by reoffering the evidence can also be avoided.Under the function of supervision for the lower level in civil retrial procedure,misjudgments accountability system inside the court is used to supervise and urgeoriginal trial investigators to judge the same kind of cases carefully. The way ofremanding for retrial is the most common way showing the function of supervisionfor the lower level in civil retrial procedure. From the actual operation situation,remanding for retrial presents great arbitrary because of some human factors.Therefore, the efficiency of remanding for retrial shall be improved to protect thepower of procedural option of the party, standard the cause of remanding for retrial,and limit the times of remanding for retrial caused by facts and evidences.In the value of retrial procedure, the value of substantive justice and proceduraljustice has a position with advantage. In China, retrial procedure has some positiveinfluences on correcting the illegal procedures, tangible errors and the protection oflawful rights for parties. However, the situations with excessively pursuingsubstantive justice and ignorance of the necessary procedural justice are still existed.Based on the present theories of laws, from the angle of long-term development,maintaining the function of res judicata shall be positioned as the primary function.Only when there are major flaws in the judging of original trial, the function of errorrecovery for civil retrial procedure shall take effects. The value system of civil retrialprocedure in China is arranged from high-level to low-level: maintaining the functionof res judicata, function of error recovery, function of keeping stability and functionof supervision, in which the former two items are in the leading position and the lattertwo items are in the second position.