| Because of the problems existing in legal principle and practice, the present China Civil Retrial Proceeding has become a point at issue. How to construct the modern Civil Proceeding, especially the Civil Retrial Proceeding, will be an important step in the course of the Chinese Legal Modernization. The study of the Start-up of Civil Retrial Proceeding, which directly indicates the fundamental ideas and value orientation of the whole retrial proceeding, takes precedence over any other problems. Based on the study of the "retrial" system home and abroad, the requirements of Market Economy, and the latest achievements of research on Modern Civil Law of Action, this dissertation focuses on the problem of the Start-up of Civil Retrial Proceeding In China, aiming at reconstructing the Start-up System of Civil Retrial Proceeding in China, which accords better with the internal law of Civil Proceeding. This dissertation falls into four parts: In part one, it studies and assesses the start-up system of the present Civil Retrial Proceeding in China. It first introduces the regulations in China of the subject in the start-up of Civil Retrial Proceeding. With the influence of the Ex-Soviet theories of law, and the Planned Economy System, it is often ignored that civil economic relations belong to private laws in nature, and the parties' actions are over-interfered by the State Power. As far as the start-up of proceeding is concerned, only the courts and procuratorates, according to the regulations, can be the start-up subject of Civil Retrial Proceeding, while the parties are not entitled to start up the retrial proceeding solely. Then the disseration exoatiates on the object, the cause, the term, and the number of times of retrial. Taking the legal practice into consideration it makes a profound analysis into the Start-up system of Civil Retrial Proceeding in China macroscopically and microscopically, and points out the problems in legislation and legal practice. In part two, it studies and assesses the causes and principles of the present Civil Retrial Proceeding in China. According to the author, the formation of the present Civil Retrial Proceeding in China attributes to various factors. In ancient China, there were regulations about legal assistance to the effective wrong decisions.At that time, the legal decisions lacked stability. The retrial would never end until the parties felt satisfied. According to the theories of Civil Law of Action in Ex-Soviet, the trial of courts should lead to justice of entity. After the founding of P.R.China, we not only absorbed the theories of lawsuit in Soviet Union, but also copied its lawsuit model. Besides, China had been carrying on Planned Economy System for decades, and the Civil Retrial System used to be adaptive to the economic base. Finally, the author points out that the successful experience in practising the political principle we insist has strengthened the idea of decision correcting, and is also an important reason for the formation of the start-up system of Civil Retrial Proceeding. Part three discusses the basis of the legal principles of Civil Retrial Proceeding Start-up system under the Market Economy. According to the author, under the market economy, the right of litigation should be respected in the jurisdiction of court, and the decision of the parties' own rights should not be over-interfered with. The jurisdiction of court serves the right of litigation and should be restricted by the right of litigation. This requires the court, in designing the start-up of civil retrial proceeding, should not be entitled the right of starting up the retrial proceeding, and consequently, the parties' right of applying for retrial should be reinforced and improved. Meanwhile, under the market economy, the civil actions should aim at justice, taking efficiency into account. In addition, in designing the retrial system, special attention should be paid to the keep the stability of effective decisions, to confine the object of retrial cases, to rest... |
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