| The system of remand of civil second instance is an external manifestation of the turn of the proceedings,and in essence is a sanction against the ineffective judgment made by the original court.Article 177 of the Civil Procedure Law of the People’s Republic of China(hereinafter referred to as the "Civil Procedure Law")provides the main provisions for the remand system,which is supplemented and improved in 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 "Interpretation of the Civil Procedure Law").In the context of the reform of trial mode,the civil remand system,as an important system in civil litigation,should be paid more attention.The remand retrial system has the function of safeguarding the interests of the parties at the trial level,which cannot be replaced by other methods of adjudication at the second instance.However,it also manifests itself as the collision and game between the values of justice and efficiency,procedural stability and other values.How to find the best balance between them and make the remand retrial system maximize its benefits has always been the fundamental direction to be followed in the legislative improvement.Through empirical research,it can be found that the current civil retrial system of the second instance has the following characteristics in its operation: centralized types of cases returned,mainly due to factual reasons,high ratio of the number of returned cases to the number of self-recognized cases,and low rate of retrial after retrial,which also reflects that the retrial system of the second instance is still arbitrary in its application.In addition to the influence of subjective factors such as authoritarianism litigation mode and traditional judicial concept,as well as extra-law factors such as avoiding difficult cases and taking care of the emotions of the parties,the deeper reason lies in the defects of legislation.In this regard,it is necessary to examine the main problems existing in the system of remand of civil second instance from the legislative level,such as the setting of legal reasons is still unreasonable,the boundary between the setting of legal reasons and the self-judgment is not clear enough,the limit of the number of remands deviates from the needs of judicial practice,and there are still legislative gaps in the reasoning and binding force of the ruling,the scope and duration of retrial,the parties’ procedural option,and the supervision and relief mechanism.Through the problem-oriented approach,seek the solution path,and put forward seven suggestions to improve the standard construction of the remand retrial system of civil second instance:first,make the remand retrial as a supplementary application of the self-regulating judgment;second,make more reasonable provisions on the legal reasons for the remand retrial;third,give the parties the right to choose procedures in the remand retrial system;fourth,make flexible provisions on the frequency limit of the remand retrial cases caused by procedural defects,The fifth is to strengthen the reasoning of the ruling,make clear that the retrial ruling has binding effect on the court of first instance and the court of second instance,the sixth is to make detailed provisions on the retrial operation procedure by clarifying the scope and duration of the retrial,and the seventh is to establish an effective supervision and relief mechanism in order to better provide a way to break the judicial practice dilemma. |
