Study On The Subject System Of The Eivil Retrial Procedure In China

With the development of the socialist market economy,the litigation right consciousness of Chinese citizens has been constantly improved.More and more people are willing to resort to the court for civil disputes so as to protect their legitimate rights and interests by legal means,and to seek a fair and reasonable solution.Civil litigation accounts for the most majority of cases in the courts.At present,the two-tier appellate system is adopted in China.The civil retrial procedure as a special relief program,is an important part of civil procedure,but it is not a must-have procedure for each case.If there is a mistake in the judgement of the first or second instance of civil,justice is damaged,the civil retrial procedure as a relief means is a special program.The purpose of establishing civil retrial procedure is to establish judicial justice and maintain judicial authority.In the past long-term judicial practice,the civil retrial procedure has played an important role,such as realizing judicial justice and protecting the legal rights and interests of the parties.However,the procedure is still in the process of practice and improvement due to the influence of legislative technology and current legal environment.Some existing problems cannot be ignored.Civil procedural law of China provides that the court,procuratorate and parties have power to start civil retrial.This regulation is the result of legislators considering all kinds of factors and weighing the advantages and disadvantages of various interests,which has its necessity and practical function.However,there are many drawbacks in the regulations on the relevant authority of each initiator,which is quite unreasonable.For example,as a judicial organ,the people's court initiates the civil retrial procedure on its own initiatively according to its functions and powers,which does not meet the requirements of the theory of res judicate,contradicts with its role as neutral judge,and greatly damages the disposition right of the parties.The people's procuratorate,as the legal supervision organ,initiates the civil retrial procedure by the way of protest,which violates the parties' right of free disposal,breaks the proper balance of civil litigation,and results in the unequal status of both parties.Moreover,the procuratorate has almost unrestricted right to protest,which is not only to cause the conflict easily between law and prosecution and waste limited judicial resources,but also inconsistent with the requirements of justice,stability and efficiency of civil litigation.However,it' s difficult to start the civil retrial procedure to relieve their legal rights and interests for the parties who should be protected by the judicial litigation most,keep the closest connection with litigation mark and hope to start civil retrial procedure to protect their legitimate interests,but only apply to the court or the people's procuratorate.If start the civil retrial procedure is finally decided by the court.Obviously,this is very disadvantageous to realize the litigant's right of action.This paper first discusses the relevant research status at home and abroad.From the relevant legislation,the meaning and characteristics of the existence of the civil retrial procedure and other aspects,the writer is going to analyze the problems of each part of our country's civil retrial procedure starting subject,to explore the relevant recommendations of procedure reconstruction,in the hope of improving the process of the relevant legislation to make a modest contribution.This paper mainly includes five parts.The first part is going to start with connotation and similar foreign programs.It mainly clarifies the concept of the civil retrial procedure,the historical development of each initiating subject,the legislative provisions of relevant procedures in foreign countries,the legislative status and theoretical disputes.The second part starts with analysis of people's court as the starting subject of the civil retrial procedure.According to some cases,it analyzes the legislative provisions of the people's court as the starting subject of retrial procedure,theoretical disputes,the unique characteristics,the significance of this right and many disadvantages.The third part analyzes the initiation of the retrial of the protest of the procuratorate,theory disputation,unique characteristics,the necessity of existence and disadvantages.The fourth part focuses on the analysis of the relevant legal provisions of current parties who act as the civil retrial starting subject,characteristics and shortcomings.The fifth part puts forward relevant legal suggestions based on above analysis of the connection among each starting subject and the existing problems.Also,this part is going to state author's views about improving and reconstructing trial starting subject institution of supervision procedure from concept to legislation of each subject.The writer hopes to provide some help to the perfection of the civil procedure in China.