Study On Prosecution Recommendations Of Civil Retrial

From the previous running in the judicial practice of civil retrial to the present, civil retrialrecommendations has spanned for many years and also has experienced so many cases in the application ofthe civil retrial. Meanwhile, civil retrial recommendations also has accumulated valuable experience inlegal practice and procuratorial recommendations of civil retrial in our country and has also developed itsown running path and achieved a certain degree of social effectiveness. August31,2012, the11th NationalPeople’s Congress at the28th session of the standing committee passed the new revision of the CivilProcedure Law, which confirms the legislative approval and confirmation of civil retrial procuratorial, sofar has established the legal status of the civil procuratorial as a supervision way. Civil retrial theprosecution proposal, with its own unique advantages in the dual heritage of practice and legislation, isgradually becoming an important means of civil procuratorial supervision.Of course, the development of civil retrial system of procuratorial recommendations deserves ourappreciation, however, at the same time, we should also notice the shortage of it which derives because ofits own characteristics, a lack of in-depth both theory and practice and the provisions of its laws andlegislation’s not suiting for the run-in Department. For example, the unclear scope of its application, theconfusion with other related systems and the lack of regulatory procedures etc., are constantly affecting thelegal and social effects of civil retrial recommendations. Considering all questions above, this thesis tries toanalyze the civil retrial recommended from various angles and in theory aspects to paraphrase the civilretrial prosecutorial recommends of concept, nature, value and effectiveness. Meanwhile, this thesis focuseson clarifying the scope of its application and application conditions, focuses inquiring its program appliesprocess in practice aspects and makes great efforts to combine up its theory and practice, aiming at reachinga relative perfect framework and promote the dual effect of practice.In addition to the introduction, conclusion and acknowledgments, the text of this paper is divided intofour parts, the main contents are as follows:In this thesis, the first part explores the nature and value of the civil retrial procuratorial suggestion. Atthe beginning, the author makes a brief introduction of its concept and lists separately the embodiment ofthe connotation and its concrete contents which includes supervision object, the supervision scope, and the means of supervision and so on to help to have a deep understanding of civil retrial recommendations.Based on this, the author also tries to make a comparison between the civil retrial and appeal system andthe general work of procuratorial proposals, aiming to achieve an accurate understanding of the purpose ofthis new mode of supervision. The author then discusses different perspectives from the academiccommunity of civil retrial recommendations in nature, through analyzing the “service”,“the authority said”,“comprehensive theory”, the author intends to further identify the nature of civil retrial recommendationsand conceive that the civil retrial recommendation takes “prosecution” as its main character and“recommended” attached. Finally, the author proves the value of the civil retrial recommendations frommultiple angles and draws a conclusion that whether from the aspects of simplifying the procedure,arousing the enthusiasm of procuratorial organs at the grass-roots level, or from the right relief andestablishing interactive mechanism, the civil retrial recommendations all play an important role.The second part depicts the applicable scope of the civil retrial recommendations and its applicationconditions. First of all, the author puts forward that the applicable scope of the provisions are too generaland vague in terms of the present legislation of civil retrial procuratorial suggestion. It is necessary tofurther refine the details and then make a reasonable explanation of the scope from analyzing both suitablecivil retrial cases and cases which are not applicable civil retrial. Then the author focuses on themodification of the application conditions of civil retrial recommendations stated in the the Civil ProcedureLaw. Through demonstration, analysis and comparison of three kinds of circumstances, the author draws aconclusion that “a party has a priority to apply to the People’s Court for a retrial” plays a positive role andcan be more effective to solve realistic problems existing in the practice of the retrial.The third part involves the procedure of the prosecutorial suggestion about retrial of civil. First of all,the author discusses existing problems in the operation of the prosecutorial suggestion about retrial of civilcase which includes inspection organs lacked, imperfect reply mechanism of people’s court, indifference ofthe case workers etc. Then aiming at the existing problems of the prosecutorial suggestion about retrial ofcivil case and based on the new "Civil Procedure Law" and its relevant regulations, the author puts forwardrelevant program design and suggestions from the inspection organs and the People’s Court on the two-wayconstraints of relief procedure. Only in this way can it benefits more to the operation of the prosecutorialsuggestion about retrial of civil case.The fourth part furthers the validity of the prosecutorial suggestion about retrial of civil case. For the validity of the prosecutorial suggestion about retrial of civil case, the author analyzes respectively from twosides of procedure constraint known as the flexible validity and relatively rigid validity, thinking that theprosecutorial suggestion about retrial of civil case is a flexible law of supervision. On the one hand, it is akind of flexible validity of flexible power, on the other hand, it should be given the necessary force for theprocedure.The innovation of this article lies that it did not take the traditional system to research and discuss forthe prosecutorial suggestion about retrial of civil case, neither using the fixed mode to ask questions,analyze them and then solve the problems for research system nor making all the three aspects aboveoccupies the whole contents of the monographic research. This article attempts to use the theory ofhermeneutics the appropriately and to inspect the whole system and finally to integrate the all parts togetherto service the whole research from multiple points of views and multi-dimensions. It can be regarded as abreakthrough for the traditional modes.