The Discussion Of Civil Retrial Function

Civil trial supervision procedure,namely,retrial procedure,is a reconciliation agreement over wrong verdicts,verdicts against the volition principle or against the law,in order to ensure the justice of effective judgments.Retrial procedure is a pivotal institution in both theoretical and practical civil procedure in China,however,its diversified functions result in its inapplicability,therefore,a clarified function exerts a significant role in the setting up and applicability of retrial procedure.This paper is divided into five parts.Part 1 introduces the background and framework of the paper.The packaging of the legislation over trial supervision procedure,embodies the sporadic absorption of research results by scholars and also combines the practical need of solving problems.Consequently,retrial procedure turns out not to be a simple device,realizing multiple functions,but leads to a functional ambiguity.This paper adopts many research methods,to prove that the function of retrial procedure is remedy.Part 2 explains the confusion bred by multiple functions of retrial procedure.First,retrial procedure has multiple goals and ambiguous functions.Legal,social and political goals are embedded into retrial procedure,resulting in its multiple functions.Secondly,from the perspective of retrial cause,entity retrial cause points to the supervision function,while procedural retrial cause the remedy function.The specification of the latter shows the rights remedy function of retrial procedure.Finally,multiple functions ignite conflicts among functions and functional variation.The former leads to frequent applications,difficult retrials and chaos operations in various areas,unable to integrate functions by institutional synchronization.The latter leads to the replacement of retrial procedure in practice by the third trial,causing its deviation from the original function.Part 3 exposes the cause of multiple functions of retrial procedure.1)Retrial institutions fail in the low level of final court,various qualities of judges,and its role as only a complement of trial class system.2)It is affected by jurisdiction ontology.Starting up retrial procedure and retrial investigation are dominated by jurisdiction,while clients have a passive role in retrial procedure.Jurisdiction is influenced by the Soviet model,and has a deep Ex officio doctrine.3)It is impacted by judiciary authority and res judicata theory.Judiciaiy authority is an important means to construct judiciary trust,requiring the maintenance of the stability of effective judgments.Res judicata necessitates no more litigations or contrary claims over the original case after the court makes effective judgments,and no more repeating acceptance or verdicts against the original case,thus it has a constraining effect over later judgments.4)The view of entity justice is deep rooted.Seeking truth and Correcting faults breeds the result of Emphasizing entity and Ignoring procedure,and causes a significant influence over the development of retrial procedure,excessively emphasizing entity justice and ignoring procedure justice.Part 4 is the positioning of retrial procedure.The remedy function based on maintaining res judicata,is to correct faults within a certain degree,whose logic is to abandon the path of lowering the threshold of retrial and expanding its applicable range,which is contrary to ALL Faults must Be Corrected.Fixing the function of retrial procedure to be remedy,facilitates the promotion of judiciary authority.By comparison,its significance in maintaining res judicata and correcting problems in litigations is proved internationally.They only limit retrial to few cases with severe problems.Continental legal system,represented by Germany and France,sets up a very stringent starting up condition,to the need of preserving res judicata and the embodiment of the concept of remedy;while Anglo-America legal system,represented by UK and US,transforms from the pursuit of entity justice to that of procedure justice,correcting faults by appellate remedies or other remedies,but only based on the principle of remedy.Part 5 explores the path of achieving the remedy function of retrial procedure.Internally,retrial procedure is reconstructed based on the concept of remedy,by setting up a stringent starting up condition.Externally,other functions are realized by bettering relevant institutions.