Research On The Initiation Of Civil Retrial Procedure In China

As an important part of the civil litigation system,the civil retrial procedure is not a necessary procedure for every civil litigation case,but it is a special remedial procedure initiated to safeguard the legitimate rights and interests of the parties under specific conditions,and it is also a legal exception to the principle of res judicata.In the current judicial practice,with the linear growth of the number of cases of first instance and second instance,the number of retrial cases has also increased,and the retrial procedure has become a de facto ‘third instance’ or even ‘fourth instance’,which has greatly challenged China’s system of final adjudication of second instance and caused a serious collision with res judicata.At the same time,the effective judgment is easy to be challenged and the judgment results may be overturned for a long time,which forms a strong conflict with the people’s pursuit of judicial efficiency in modern society,which is not conducive to social and economic development.As a key element in the civil retrial initiation procedure,the relevant provisions of the civil retrial initiation subject directly affect the quantity and quality of civil retrial cases.Therefore,it is necessary to continue to reflect on the relevant provisions on the starting subject of retrial in China’s civil retrial procedure in combination with the relevant legal theories and the problems exposed in judicial practice.In short,the concept of ‘error correction according to law and limited error correction’ should be infiltrated into the hearts of legislators,judges and even the general public in a timely and comprehensive manner.In the setting of the starting subject,we should respect the right of disposition of the parties,take the starting of retrial according to the application of the parties as the principle,and take the starting of retrial according to the authority of the legal prosecution as the exception.When the parties are the main body of retrial,they need to make corresponding adjustments to the application period,retrial reasons and retrial review procedures.When the court is the main body of retrial,it is necessary to clarify the reasons for the court to start retrial and the time limit for retrial,and to establish a pre-processing procedure for soliciting the opinions of the parties to ensure that the parties’ disposal rights will not be disturbed.Cancel the right of protest of the procuratorate against general civil cases,and retain the right of protest of the procuratorate against civil cases involving national interests and public interests.