On The Error In The Application Of Law Of Civil Judgment

Clear in fact finding,correct in application of law and legal in procedure are the three basic elements of proper judgment.Whether it is the correction of the judgment in the second instance or the reason for the retrial,it is also carried out around these three elements.At present,there is no clear definition of the error in the application of law in Chinese Civil Procedure Law,but six types of "error in the application of law"clarified in the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the Trial Supervision Procedure of the Civil Procedure Law of the People's Republic of China and the Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China.The author believes that the error in the application of law is essentially a negative estimation of the judgment activity and conclusion,and need correction of further investment of judicial resources,which will result in damage of judicial justice and waste of judicial resources.Regulation is indeed necessary therein,and cannot be left unchecked.Moreover,although the error in the application of law cannot be fundamentally avoided,it can be actively prevented and rationally regulated by studying the criteria for its identification,the reasons for its occurrence,and the form of its representation to minimize the error in litigation.In addition,in view of the damage of the parties'substantive rights and the judicial order,theoretical research is needed to probe into the adoption of the optimal relief procedure herein to rationalize the allocation of judicial resources.Therefore,the first part of the thesis gives an overview of the application of law in civil judgment and the error therein,and lays the foundation for the later type research by analyzing the logic in civil judgment and subdividing the judicial procedure.The second part of the thesis focuses on the identification of the error in the application of law,including the analysis of identification procedure,identification criteria and identification difficulty,to confirm the extension of the error in the application of law.The third part of this thesis is the type analysis of the error in the application of law,including the academic types and the type analysis in the context of the reverse judgment under current second-instance and the reason for retrial.The fourth part of this thesis is the regulation and prospects for the error in the application of law,first of all,based upon the links and causes of the error in the application of law,thereby puts forward the regulatory measures such as detailed trial guidance,implementation of case guidance and similar case retrieval mechanism,and enrichment of judgment documents,and puts forward the legislative prospects for clarifying the conditions and methods for reverse the original judgment in second instance,improving and increasing the reasons for retrial through the comparison of the academic types and actual types of the error in the application of law in the third part.The fifth part of this thesis is the relevant analysis of the error in contract interpretation.It has always been a heated dispute between the theoretical and practical circles whether the error in the interpretation of legal act is an error in fact finding or an error in the application of law.On this basis,as the contract is the most principal and primary civil legal act,the author chooses the dispute of the error in contract interpretation,combines the standard and error mechanism of contract interpretation,and uses the identification criteria of the error in the application of law to examine whether it is an error in the application of law,and explore its handling and correction in civil proceedings based on its error mechanism.