Research On Issues Concerning Remand Of Civil Cases For Retrial By Court Of Second Instance

The system of remand for retrial is a very important litigation system in civil litigation in China and this system can be categorized into remand for retrial by court of second instance and remand for retrial during retrial procedure based on applicable procedures and different phases of litigation. The author analyzed and discussed from the perspective of the remand for retrial by court of second instance. Whether the construction of remand for retrial by court of second instance can be scientific or not, from the perspective of small orientation, it concerns weather the purposes of appeal procedure can be realized in a better way or not. From the perspective of fundamental orientation, such remand for retrial relates to realization of judicial justice and establishment of public confidence in justice. Author of this paper engages in works concerning civil trial in a grass-roots people’s court, so cases remanded for retrial by court of second instance are inevitable in work. The author pays much attention to the system of remand for retrial by court of second instance because of remanded cases handled by the author and other colleagues. Obviously, it is inappropriate, or at least incomplete to evaluate a system only based on personal motivation.Therefore, based on revision to the system of remand for retrial by court of second instance made in Civil Procedure Law in 2012, such system of remand for retrial is discussed and expounded in this paper, which includes five parts introducing the system of remand of civil cases for retrial by court of second instance. The first part is the details of the system are introduced and expounded based on Interpretations on Application of Civil Procedure Law of the People’s Republic of China Issued by the Supreme People’s Court of the People’s Republic of China implemented on February 4, 2015. The second part expounds the historical evolution of systems of remand of civil cases for retrial in China. The third part introduces the basic content of civil retrial system in Britain, the United States in Anglo-American law system and in Germany, Japan in continental law system and summarized some experience in practices and regulations. Through historical evolution of systems of remand of civil cases for retrial in China in the second part and investigation on systems of remand of civil cases for retrial in other countries in the third part, so as to make comparison of convergence of system developments and affirm the necessity of existence and improvement of the system. The forth part summarizes the operation situation and problems concerning China’s system of remand of civil cases for retrial by court of second instance emerging in judicial practices and analyzed the disadvantages of the system during operation and causes of function dissimilation. The fifth part puts forward several pieces of advice for the improvement of the system which includes improvement of the system itself and relevant supporting systems. Specifically, scope of trial of the court of original trial during retrial process should be defined, and rights of parties concerned should be limited. In the aspects of the trial method of original trial people’s court of original trial and the trial organization of the people’s court of second instance, court of original trial should be required to conduct retrial of cases based on reasons stated on the verdict issued by the people’s court of second instance. If any party concerned still lodges an appeal after retrial completed by court of original trial, trial of such case should be completed by the original collegiate bench in court of second instance except for special circumstances. In the aspect of the people’s court of second instance for retrial case, if court of second instance determines that court of original trial had an unclear identification on basic facts, the former should determine whether such determination of unclear identification was caused by different standards of value judgment. Court of second instance may remand cases for retrial only under the circumstances that different standards of value judgment are used. On whether to give the procedure option and restrictions to the party, according to explicit legislative stipulations, court of second instance should offer options of procedure to parties concerned when a case is remanded for retrial based on substantive relief standard. Meanwhile, there exists explicit stipulations which require court of second instance to fully exercise right of interpretation and its mode and offer parties concerned the right to supervise discretion of court of second instance during retrial process in order to prevent it from avoiding or dissimilating options of procedure provided to parties concerned. In addition, parties concerned who may conduct intentional procrastination should be restricted. Finally, it is pointed out that reform for system of remand of civil cases for retrial by court of second instance is a systematic project, which should also include improvement of trial level system, etc.