Study On The Perfection Of Person Not Involved In The Case Retrial System

Civil Retrial Procedure is a special relief program; it plays an important role in civilProcedure. There is also a special subject existed in civil retrial procedure which wecalled person not involve in the case. In the judicial practice in China, it’s common thatperson not involve in the case apply to the people’s court because his interests wasdamaged by the referees. The applicable judicial interpretation of supreme people’scourt on procedure for trial supervision to ‘civil procedural law of people’s republic ofchina’, gives person not involve in the case the right to force the referee to a people’sCourt for the right to a retrial. However, due to the limited content of current law,resulting in difficulties of person not involve in the case exercise their right to apply fora retrial. This article focused study on the theory and practical significance of person notinvolve in the case application for retrial system, through a comparative analysis ofrelated systems, presented the current situation and existing problems of the system ofour country and countermeasures against the problems to perfect the system. ThisArticle consists of three parts. The first part summed up the basic theory of person notinvolve in the case application for a retrial, one of the basis for the person not involve inthe case to apply for a retrial procedure is to determine the fitness of the person, despitethe civil procedural law and judicial interpretation is not explicitly provided for, theauthor analysis the previous theory, propose several standards apply to ensure theperson. In addition, the establishment of person not involve in the case application forretrial system must based on the civil procedural fundamental theory. Author considerthat person not involve in the case to apply for a retrial of the case includes the basictheory of right relief, the protection of the right to request, the protection of the civillitigation and due process. Person not involve in the case application for retrial has thefunction of protecting the interests of the person, inhibiting the litigation fraud, and alsocontributes to maintain the objectivity and impartiality of referees and guarantee judicialauthority. The second part of the article analyzes current law and judicial interpretationabout person not involve in the case application for retrial and its defects. The third partmakes suggestions against the defects raised in the previous section. in order to perfectthe person not involve in the case application for retrial,Author analyzed the existingprovisions of the person not involve in the case application for retrial, make someconstructive suggestions after investigating from the scope of person, the civil retrial matter, standard of review, the review process and retrial of case proceedings and otheraspects. In Current law and judicial interpretations, the main provisions are aboutperson not involve in the case has the right to apply for a retrial when theimplementation of the subject or the subject matter was subject to the person. Authorconsiders that such provision may limit the scope of the person not involved in the caseand restrict the civil retrial matter. After the people’s Court has accepted executionobjection of person not involve in the case, it need to apply for a retrial to reviewsubject matter, since the legal status of person not involve in the case is different fromthe originating client, legal provisions applied for a retrial can not entirely applicable toperson not involve in the case application for retrial. Author considers that it’s necessaryto improve the relevant provisions to protect the interests of the person. When personnot involve in the case challenge to an enforcement, People’s courts in China shouldfirst review that whether the matters of the application are in accordance with the law, ifthey are in conformity with the law, the court should rule that the case need to be boundby the preceding paragraph or remanded. If they are not in conformity with the law, thecourt should reject the application for retrial. Person not involved in the case is not thelegally proper subject, it doesn’t has the right to start the retrial, in judicial practice,Person not involved in the case often has difficulties when his interests was damaged byreferee. Therefore, author believes that retrial of person not involved in the case claimssystem should be established in china, change the right to appeal to a real litigationright.