Studying On The Subject Of Starting Civil Trial Supervision Procedure In China

The trial supervision procedure, as a kind of abnormal remedies procedure, plays an important role in correcting the civil judgment’s mistakes, defending the judicial justice and protecting the parties’ legitimate rights. While the start of trial supervision procedure is a necessary and essential step of retrying the executed judgment, so its importance of trial supervision procedure or even the whole civil litigation system can speak to itself. The People’s Court, the People’s Procuratorate and the Party are the three subjects of starting trial supervision procedure in China, this kind of juridical practice has existed for many years. However, it also has some problems which severely prevent our country’s trial supervision procedure from taking its effect. This thesis, which combines empirical research with theoretical analysis, not only analyses the problems which the three main subjects of starting trial supervision procedure have in theoretical construction and juridical practice, but also proposes some methods to improve the opening-subject system of trial supervision. This thesis is divided into three chapters:The first chapter is a summary of trial supervision procedure, it begin with the integrity of trial supervision procedure, and then present the background of the opening-subject system of trial supervision to lay the foundation of the following analysis. The first part clarify the concept of trial supervision procedure, advocate to conform to our country’s juridical practice in the definition of trial supervision procedure and treat the opening procedure and the judicial procedure just the same importance way. The second part is the analysis of trial supervision procedure’s character in the civil litigation system. It compares our country’s current system with alien’s to illustrate that our trial supervision procedure’s character is still private right. And the last part is the outline of the opening subject of trial supervision procedure, it briefly introduces the opening-subject system of trial supervision from the historical and comparison method perspective.The second chapter is about the problems in our opening-subject system of trial supervision, and the specific analysis of the three main subject’s problems from the practical and theoretical point of view. The first part analyses the problem of the People’s Court in four aspects:the unreasonable construction of the system, the destructive effect to the Court’s function, the oversized discretionary space, the dissimilation phenomenon of the system in the judicial practice. The second part analyses the problem of the People’s Procuratorate from three aspect:the backwardness of the theoretical basis, the lack of case discovery procedure, the specific implementation issues of the Procuratorate’s protest. The third part analyses the problem of the Party in three aspects:the contradiction of its theoretical orientation and practical status, the confusion of the internal judicial system and the external judicial system, the confusion of the remedy procedure for persons out of the lawsuit.The third chapter proposes some methods to improve the opening-subject system of trial supervision. It bases on the first chapter’s background analysis and introduces the ways to improve the opening-subject system of trial supervision. The first part presents the theoretical ways to improve it in three aspects, which views the Hypothesis of Rational Man as the structure premise, the Limited Remedy and Procedure Justice as the structure idea, the Res Judicata Subjective Scope as the proper subject. The second part presents the institutional ways to improve the opening-subject system of trial supervision—establish, multi-level adjudication grade system and establish the retrial procedure and restoration which regard the parties as the only opening-subject. The last part presents the supporting guarantees ways to improve the opening-subject system,as gradually change the civil procedure parties’ concept of appeal and petition letter, establish a complete social insurance and security system, and set up a nationwide case information network system.