Research On The System Of Remand For Retrial In Civil Trial Of Second Instance

As a kind of judgment method for the court of second instance to hear appeal cases,remand for retrial in civil trial of second instance is a negative evaluation for the ineffective judgment of lower courts,which plays an important role in maintaining trial level interests,maintaining trial level division of labor and promoting procedural justice.Article 170 of the Civil Procedure Law of the People’s Republic of China（hereinafter referred to as "the Civil Procedure Law"）stipulates two situations that apply to the system of remand for retrial in civil trial of second instance: unclear basic facts or serious violation of legal procedures.Later,the interpretation of the Supreme People’s Court on the application of the Civil Procedure Law of the people’s Republic of China（Hereinafter referred to as Supreme Court judicial interpretation）also explains and supplements the specific situations.Starting from the current situation of legislation and judicature in China,this paper concludes that there is a lack of restriction mechanism in the system of remand for retrial in civil trial of second instance.On the basis of studying the legislation of civil retrial in some countries and regions of two legal systems,guided by the current problem,the author puts forward suggestions for the system of remand for retrial in civil trial of second instance in China.This paper consists of four parts:The first chapter discusses the classification,function and limitation of the system of remand for retrial in civil trial of second instance.This chapter is devoted to sort out the basic theory of the system of remand for retrial in civil trial of second instance.First of all,according to different classification standards,the remand for retrial in civil trial of second instance can be divided as follows: the retrial of entity deficiency type and the retrial of procedure deficiency type,the retrial of discretionary type and legal type,the retrial of application type and the retrial of authority type.Secondly,the functions of this system mainly include three aspects: maintaining the interests of the trial level,maintaining the division of labor at the trial level,and promoting procedural justice.Finally,the limitations of this system including violating the concept of procedural stability and affecting the efficiency of civil litigation.The second chapter introduces the current situation and problems of the system of remand for retrial in civil trial of second instance.First of all,This chapter combs the legislative provisions of the system of remand for retrial in civil trial of second instance in the current civil procedure law and the judicial interpretation of the Supreme Court,and analyzes the legislative status of this system in China from two aspects: the causes of the retrial and the procedure of the retrial.Secondly,this chapter makes statistics on the relevant data of the remand for retrial in civil trial of second instance from 2013 to 2017 in the national courts.Taking the remand for retrial in civil trial of second instance of G City in Guangdong Province,W City in Hubei Province and J City in Shandong Province as samples,it analyzes the relevant data and summarizes the current judicial characteristics of the remand for retrial in civil trial of second instance in China.Finally,according to the current legislation and judicial practice,combined with the analysis of reasoning in the retrial decision of H intermediate people’s Court of Anhui Province,this paper sums up the problem of the lack of restriction mechanism of this system in our country,which is specifically manifested in the lack of restriction of the parties to the court of appeal,the lack of restriction of the effectiveness of the retrial decision,and the restriction of causes still needs to be detailed and applied in the justice Aspect.The third chapter mainly studies the system of remand for retrial in civil trial in foreign countries and obtains the enlightenment to our country.This paper makes a study on the civil retrial legislation in the relevant countries and regions of the civil law system and the common law system,and analyzes the similarities and differences between the two legal systems in the application of the remand for retrial in civil trial through comparative analysis.And on this basis,from three aspects of "strictly restricting the application of remand for retrial","giving the parties the right to choose the procedure" and "making clear that the reason for remand is binding",this paper sums up the enlightenment of the remand for retrial in civil trial in the two legal systems to our country.The fourth chapter is the suggestions to improve the retrial of civil second instance.Guided by the existing problems in China,this chapter puts forward suggestions on the improvement of the system from the following three aspects: the parties’ procedural choice right,the effectiveness restriction perfection of the retrial ruling,and the application perfection of the reasons for trail in the judiciary: in the aspect of the parties’ procedural choice right,the scope of the procedural choice right shall be clarified and assisted by the interpretation and examination of the judge Obligation,which restricts the application of remand to the court of appeal;in terms of the effectiveness of remand to the court of appeal,the restriction of remand to the original court is formed by clarifying the binding force of remand reasons,strengthening the reasoning of remand to the court of appeal,and canceling the internal letter of remand to the court of appeal;in terms of the judicial application of remand,this paper analyzes the reasons in the method of legal hermeneutics.This paper analyzes the different application of reasons in different situations,and makes clear that the second instance can apply the "fault-tolerant line maintenance" mechanism through the way of correcting the first instance,so as to limit the application of remand for retrial.