Study On The Relief Of Civil Referee Omission

In the practice of civil litigation,judgment may omit some litigation requests of the parties.The current law of our country stipulates two remedies: appeal and retrial.However,there are some drawbacks such as different criteria for judgment omission,inconsistency with civil procedural jurisprudence,violation of litigation economy and damage to the procedural rights of the parties.The particularity of judgment omission determines that there is no best remedy for appeal and retrial procedure.This article uses case analysis and comparative research methods to analyze and investigate the remedial procedures for omission of judgement in Germany,France,Japan and Taiwan.These countries and regions adopt supplementary judgment system to solve the problem of omission of judgement and self-rectify it within the trial level,which can overcome the shortcomings of appeal and retrial procedures and give consideration to the value objectives of fairness and efficiency.On the basis of our own national conditions,drawing lessons from useful experience from other countries,we can construct a supplementary judgment system suitable for our country,coordinate with the current appeal procedure and retrial procedure,and reconstruct the remedy system of omission of civil judgment in order to better solve the problem of omission of judgment.In addition to the introduction and conclusion,the text is divided into five parts:The first part is the definition and identification of omissions in civil adjudication.At present,the concept of omission in civil judgment is inconsistent.Through comparative analysis of various views,the purpose is to define the scope of omission in civil judgment.The content of omission in civil judgment can be divided into subjective omission and objective omission.Starting from the judgment documents,it is helpful for the parties and courts to identify the omission of the judgment by analyzing the specific situation of the omission of the judgment.The second part is the current situation and problems of the remedy for omission of civil judgment in our country.By investigating the relevant legislation and statistical analysis of the cases in practice,this paper summarizes the current situation of the remedy for omission of judges in China,and analyses the existing problems.The current legislation of our country stipulates appeal procedure and retrial procedure for remedy of omission of judgment.In practice,most courts relieve omission of judgment through appeal and retrial procedure.However,there are some problems such as reducing litigation efficiency and causing delay in the application of remedy of omission of appeal and retrial procedure.Some courts explore more efficient remedy methods,but they have no basis for lack of legal support.The third part is the theoretical analysis of the omission of relief judgment in the supplementary judgment system.In civil law countries and regions,supplementary judgment system is usually adopted to remedy the omission of judgment.However,the supplementary judgment system in our country is still in the legislative blank.It is necessary to construct supplementary judgment system to remedy the omission of judgment in our country.It is the inherent requirement of fair and efficient value concept,procedural stability,safeguarding the interests of the parties at the trial level and judicial authority.Separability,partial judgment system and res judicata theory are the theoretical basis of supplementary judgment system.The fourth part is a comparative study of the supplementary judgment system.Germany,France,Japan and other continental law countries usually adopt supplementary judgment system to remedy the omission of judgment.Through the investigation of the relevant legislation of supplementary judgment system in typical continental law countries,this paper mainly includes the scope of application of supplementary judgment,the initiation of supplementary judgment procedure,the issuance and remedy of supplementary judgment,etc.,in order to provide for the construction of supplementary judgment system in China.Draw lessons from.The fifth part is the reconstruction of the remedy procedure for omission of civil judgment in our country.Aiming at the remedy of omission of judgment,we should base on the value concept of giving priority to efficiency and giving consideration to fairness,drawlessons from the reasonable elements of supplementary judgment system in continental law countries,and construct a supplementary judgment system suitable for our country,including defining the conditions and scope of supplementary judgment,the subject of starting procedure,the time limit of starting procedure,and the making of supplementary judgment,etc.Secondly,we should differentiate the different situations of omission of judgement,choose supplementary judgment procedure,appeal procedure or retrial procedure to realize reasonable procedure,division of labor and cooperation,and optimize the relief system of omission of judgement in China.