On Setting Up The Retrial's Reason In Civil Procedure

The retrial's reason is the core of the retrial procedure,the scientificity of the retrial's reason is directly related to scientificity of retrial procedure.The direct purpose of the retrial procedure of civil procedure is to protecte the right to apply for retrial of the parties.It is of direct significance to the scientific design of the retrial system by studying the nature of the right to apply for retrial of the parties.The popular view to the attribute of the right to apply for retrial is the view of the right of action.The view of the right of action is that the right to apply for retrial belongs to the category of the right of action and the right to apply for retrial is the right of action.The right of action refers to the right of the litigant to go to court and ask the court to judge a civil dispute after the civil dispute occurs.The right of action belongs to the category of the basic rights.The view of the right of action is difficult to judge the right to apply for retrial in theory.The right of action is universal,however the exist of the right to apply for retrial is an effective judgement,which is not be owned by the birth.The right of action is absolute,however the exercise of the right to apply for retrial is been limited by conditions.The right of action belongs to the basic rights,which cannot be abandoned,however,if the party to an affair doesn,t exercise the right to apply for retrial,he will lose the right.The right to apply for retrial belongs to the category of the special right of the objection to procedure.The right of the objection to procedure refers to right to challenge the operation of the proceedings and the defects in the results thereof.The right of the objection to procedure includes the basic right of the objection to procedure and the special right of the objection to procedure.The attribute of the right to apply for retrial,which is the special right of the objection to procedure,makes the nature of the right to apply for retrial return to the original right attribute.The right to apply for retrial is different from the right of action,the general procedural right and the right of petition.It means that the right to apply for retrial can't be exercised at will.The attribute of the right to apply for retrial helps to rethink the reasons of retrial of our country,and revise the parts that don't comfort to it.In the context of the special right of the objection to procedure,the establishment of the retrial of civil litigation in China should focus on the significance of the retrial's reason,the determinacy of the retrial's reason and the supplement of the retrial procedure.The function of retrial is to reverse the res judicata of the judgement.The basis of the res judicata is the procedural protection,which includes the protection of the judicial procedure and the judicial judgement.The attribute of the special right of the objection to procedure is embodied that only in the process of the effective judgment and the judgment itself infiringes the fair trial right of the parties,it is the retrial's reason of the effective judgment.This is the significance of the retrial's reason.The attribute of the special right of the objection to procedure is embodied that only exist the specific and significant retrial's reason,the parties can apply for retrial.This is the determinacy of the retrial's reason.The attribute of the special right of the objection to procedure is embodied that if an objection is not subject to the general procedure declaration,the retrial procedure should not be used to overturn the effective judgment or order.If the referee mistakes caused by the reason of existed in the procedure of first instance,and the parties have not appeal,objection and request for reconsideration of the conventional way to seek relief,in principle,the parties cannot come into effect in the judgment after applying for retrial.This is the supplement of the retrial procedure.We should reconsider the reasons for retrial in China's civil procedure law based on three factors,namely,the importance,significance and complementarity of the retrial cause,and put forward suggestions for improving the reasons for retrial in China's civil procedure.Based on the requirements of major causes of retrial,only serious flaws the situation allowed retrial,it is necessary to add some legal retrial procedure defect belongs to the basic situation,the right remedy procedure object should not be used as the retrial;retrial was based on the requirements of compliance with the retrial judgment,only form of review we can make no substantive examination,the Civil Procedure Law of our country some need to refine or modify the retrial;retrial supplementary requirements based on the retrial application shall end based objection procedure,our country should set additional conditions for the civil retrial...