| The remand system of civil second instance is an important system in the proceedings,which can correct the errors of the original judgment,safeguard the interests of the trial level,exercise the judicial supervision power and realize the fair value.The Civil Procedure Law of the People’s Republic of China(hereinafter referred to as the Civil Procedure Law)stipulates two kinds of reasons,that is,unclear basic facts and serious violation of legal procedures.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 the Judicial Interpretation of the Civil Procedure Law)details some of the provisions,limits the reasons to a certain extent,and greatly improves the system,but there are still some problems,If the standard of remand for retrial is not specific,the parties’ procedural option is missing,the number of remand for retrial is not properly prescribed,the trial of the court of second instance and retrial is not restricted,and the procedure reversal is not conducive to balancing the value of fairness and efficiency,so this way of adjudication should not be used as the judicial norm,and should be applied cautiously.Based on the reform of the trial-level functions of the four-level courts issued by the Supreme People’s Court in October 2021,the judicial status of the national courts and the pilot courts in H District of S City was analyzed by empirical research method.It was found that the remand rate was high and the proportion of the facts was large,there was no "taking the principle of self-regulation as an exception,remand as an exception",the parties were not given the right to choose procedures,and there was no mechanism to investigate the wrong cases.In addition,the comparative study method was used to analyze the system outside the territory and in Chinese Taiwan,and found that its subject matter was specific and subject to more strict restrictions."Based on the principle of self-regulation,remand was an exception",which gave the parties the right to choose procedures,stipulated the binding force of the reasons for remand on the retrial court and the scope of the retrial,which is worthy of our reference.In short,there are still many problems at this stage,which can not meet the needs of the reform of audit-level functions well,and should be strictly restricted.Therefore,we should improve it from the following five aspects.First,in this context,in order to reduce the pressure of the grass-roots people’s courts,achieve the goal of effective second instance and final adjudication,balance fairness and efficiency,the system should be positioned as a whole,and the attitude of strictly restricting the application should be adopted.Second,distinguish the causes of unclear basic facts and limit the scope of application,"take the principle of self judgment,and remand as an exception",linking the cause with the maintenance of the interests of the trial level.Third,give the parties the right to choose the procedure and listen to the opinions of both parties before making the decision of retrial.Fourth,restrict the court of second instance to send back the right of retrial.By establishing a research and analysis mechanism to help the court of second instance understand and determine whether the case should be sent back for retrial,and help the judge of the original trial judge whether the previous judgment is improper,so as to deepen the recognition of the reasons for sending back and unify the judgment standards;Give the court of first instance the right to relief,and allow it to apply to the court of second instance for review if it is not satisfied with the decision of return,so as to achieve the supervision and restriction effect and inhibit the phenomenon of arbitrary return;Detailed provisions on the number of retrials sent back can only be sent back once in fact,while those in procedure can be sent back for retrial if they are in serious violation of legal procedures;Establish a retrial and misjudgment investigation system for remand of the second instance,and investigate the responsibility of those who constitute improper remand.Fifth,regulate the trial of the retrial court.By clarifying the scope of the retrial,the matters that should be revoked will be clarified,and the matters that have not been revoked will continue to be effective,so as to guide the judge’s judgment in practice and speed up the litigation process;Determine the binding force of the reason for sending back to the retrial court to prevent the formal trial;We will establish an after-the-post supervision system for the remand of retrial cases,supervise the implementation of the retrial by the court of first instance,improve the trial quality,and realize the function of the remand of second instance retrial system. |
