Research On The Subject System Of Civil Retrial

The civil retrial procedure is for a legally effective civil cases of the second instance trial or the existence of a trial supervision procedure and correct the error in the facts of the case or the legal application. Civil retrial procedure can ensure the quality of case, the legitimate rights and interests of the parties, realize the judicial justice, is an important supplement to civil procedure. This paper analyzed how to start the current legislation of civil retrial with the court Procuratorate and party. And then analyzes the legislative defects of these three subjects in civil retrial procedure, and finally put forward should be establish reasonable construction of the civil retrial subject system. At present, the provisions of the civil retrial subject in our country started very unreasonable. As the people’s Court of the judicial organs in accordance with the authority to start the retrial, not only does comply with the judgment of res judicata theory, but also contrary to the court netural position. As the people’s Procuratorate organs of the authority to start the retrial protest, also violate the litigant’s right of suit, breaking the relationship between civil litigation isosceles triangular balance, directly caused the litigation status inequality; at the same time, the procuratorial organs have almost no time and space constraints of the right to protest, is the leading cause of litigation resources waste, conflict with court and procuratorate. However the party it’s hardly to start the retrial procedure. Because of our civil procedure law does not stipulate that the parties can directly start the retrial procedure, the parties should apply to the court or procuratorate, after examination, decide whether to start the retrial. Obviously, the realization of the right of litigants is quite disadvantageous. Based on the reference to legislation in civil law and common law countries start the subject system of civil retrial. The paper we should cancel the people’s court’s authority to start the retrial, retain the people’s Procuratorate power to set up the retrial of civil retrial. Only on the civil retrial startup subject to adjustment, reasonable construction, giving the parties the right to start a retrial, a retrial, retrial subject to drawbacks of system change fundamentally, realize the civil law principle of fairness and justice.