Research On The System Of Civil Second Procedure Remand For Retrial

Retrial is an important way for the court of second procedure to deal with appellate cases.Retrial and commute have the same function of correcting the error of the judgment of first procedure,but retrial plays an important role in protecting the interests of the parties at the trial level,which can not be replaced by retrial.Civil criminal retrial system by lawmakers in measuring the judicial justice and judicial authority,the parties whose interests and lawsuit benefit and various value after comprehensive selection,due to its long action period,judicial natural disadvantages of low efficiency,civil criminal retrial the judgement shall not serve as a kind of legal norm and high,can only in the sentence can't reach the retrial effect when it is not that in effect is to safeguard the case-hearing level interests of the parties,therefore,protect the interests of the parties case-hearing level should be the core aim of civil criminal retrial system.Obviously,from the cause of occupying the core position of the retrial system,it can be known that the current legislative provisions on the retrial system of civil second procedure in China do not reflect one of the core purposes.First,the scope of substantive causes is broad;second,the scope of procedural causes is narrow.In respect of the subject status of the parties to the procedure,the existing provisions of China and other countries outside the region and the legislative level of China's Taiwan have a large gap,mainly reflected in the extent of the parties to enjoy the right to choose the procedure.At the same time,the strict limitation on the number of retrial and the absence of the regulation on the scope of retrial in the legislation seriously hinder the full and effective play of the value of the retrial system in the second procedure of civil trial.In judicial practice,the delay of judicial concept of judges and the improper carrier of retrial are the important reasons for the poor operation effect of retrial.Therefore,by fully considering the ecology rooted in China's local rule of law system,and by learning from the advanced legislative experience of other countries outside the region and Taiwan,China's retrial system ofcivil second procedure should be improved in the following aspects.The first is to set up the cause of retrial for the core purpose of protecting the interests of the parties at the trial level,with double restrictions;Second,to improve the original system model with judicial power as the core,and to strengthen the respect for the way to recognize the subject status of procedures;Third,the limitation on the cause of retrial should be rationally returned to the classification limitation.Fourth,to the retrial "retrial" link to give appropriate attention,clear retrial scope;Fifth,to improve the judicial concept of the judicial personnel in the application of the retrial system and to correct the distorted state of the system operation;The sixth is the perfection of the carrier of retrial,that is,the ruling should be fully reasoned and the internal culvert should be abolished.