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On The Relationship Between Retrial Procedure And Res Judicata Of The Original Judgement

Posted on:2015-04-11Degree:MasterType:Thesis
Country:ChinaCandidate:N Y LinFull Text:PDF
GTID:2296330467965299Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
Retrial procedure is to hear or try the ascertained judgement anew. Most people take itfor, but when you get to the bottom, you will find the paradoxes between retrial procedureand res judicata. Ascertained judgement exists res judicata, which restrict the parties cannotmake protests and the court cannot make judgement contrary to the former judgement.Therefore, to retrial the ascertained judgement, the court is bound to lift the res judicata. Butaccording to the law of the region of civil law system, the court reverses the originaljudgement when render a new judgement. This article will explain why retrial procedure canhear a case with res judicata. Retrial procedure is divided into three phases, and the court liftsthe res judicata in which phase will be the concern of this article.Part One: the outline of res judicata and retrial procedure. In order to make preparationfor further discussion, this part will briefly introduce the positive and negative effects of resjudicata, retrial phase and objects of the retrial procedure, and specify the view hereinsupported.Part Two: the relationship between retrial reason and the justification of the originaljudgments’ res judicata. Invalid reason and restitution reason is the classification of retrialreason. The article discusses the impact which retrial reason affect the justification of theoriginal judgement’s res judicata from the perspective of the classification. By comparativestudy correlation theory, the article draw a conclusion that the existence of retrial reason doesnot meant to lift the res judicata, because the existence demonstrates that the originaljudgement had defect on substantive or procedural law, which will undermine the justificationof res judicata. We determine that the retrial reason will completely deny or reduce thejustification of res judicata according to the classification of retrial reason. Invalid reason willcompletely deny the justification, and the original judgement is retroactivity. The originaljudgement with restitution reason may lift the negative effects of res judicata, so the partiescan fight for the legitimate rights and interests again, and the court can handle the case again.After these, we can clarify the function of retrial reason in the retrial procedure, which ishearing or trying a court case anew.Part Three: the status of the original judgement’s res judicata in the third phase. Whenthe court finds that the original judgement existed retrial reason, the case may advance into the third phase. Then what is the status of the original judgement’s res judicata, valid orinvalid, there are exist two theories in Japanese legal scholarship. These two theories haveimportant relationships with the function of retrial reason, objects of the retrial procedure. Thearticle will put forth that res judicata of the original judgement with invalid reason is invalidby formative effect in the second phase. Only restitution reason has causality with improperverdict can the court reverses the original judgement.Part Four: the current situation and recommendation of our country’s Retrial procedureand res judicata of the original judgement. Unlike the civil law system, there are three kindsof people can start the retrial procedure, that is prosecution, the court and the parties. Thearticle tries to give suggestions on retrial phase, retrial reason and the provision about resjudicata of the original judgement from the three kinds of people.
Keywords/Search Tags:Retrial procedure, retrial reason, res judicata
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