Study On The Problems Of Initiation Civil Retrial Procedure

The value of the reform of the adjudgement and supervision system ofthe people's court lies in not only protecting the litigant's right of appeal andright of application for retrial but also maintaining the power of effectivejudgment of the people's court. The regulations of the current Code of CivilLaw of China on the civil retrial procedure are obviously adaptable to theactual needs of judgment, which are urgent to be revised, supplemented andperfected.Referring to the methods of comparative research, this paper has made acareful and intensive analysis and discussion of the three aspects of theinitiating subjects, initiating origins and restriction on initiation of the civilretrial procedure, and has presented concrete solutions and legislativesuggestions on many difficulties and hotspots of interfering in initiating thecivil retrial procedure. The whole paper consists of three chapters.In Chapter 1, the problem of subjects of initiating the civil retrialprocedure is mainly dealt with. The three subjects, current situation anddefects of initiating the civil retrial procedure regulated in the current Code ofCivil Law of our country are analyzed.The author thinks that there are no regulation in the current Code ofCivil Law on which procedure the presidents of the people's courts of alllevels, the Supreme Court and the upper people's courts use to find that thereare mistakes indeed in the judgments and verdicts that have come into effect,thus initiating the civil retrial procedure, and that the peoples'court, as thesubject of initiating the civil retrial procedure, plays a smallest role. The court,which initiates the civil retrial procedure according to its functions and power,does not accord with the economical principle of lawsuits and is also not infavor of maintaining the stability and balance of justice. The author advises tocancel the authority of the court to examine the cases having been judged andinitiate the civil retrial procedure. In the situation in which the qualificationof the court as the subject being active to initiate the civil retrial procedurehas not been cancelled, the people's court, as the initiating subject, shouldactively and gradually give up the authority of being active to examine thecases having been judged and initiating the civil retrial procedure.The application for retrial, as the litigant's right of action, has nopowerful guarantee in reality. The regulations on the system of application forretrial are too simple, and it will be necessary to change the application forretrial to the appeal for retrial in revising the Code of Civil Law in the futureand make concrete and explicit regulations on the procedures of suit andacceptance of the appeal for retrial in order to make the litigant's right ofaction become real in the retrial procedure and also make the acceptance ofthe appeal for retrial of the court. The development and perfection of theretrial system in the civil proceedings of our country should go from theapplication for retrial to the appeal for retrial.By comparing the international examinations and supervisions andcommenting on the different ideas of the procuratorate as the subject ofinitiating the retrial procedure, the paper discloses the current situation andexisting problems of the people's procuratorate initiating the civil retrialprocedure in lodging protests. At present, the existing problems mainlyinclude the blindness and randomness of initiating the retrial procedure inlodging protests, lack of legal determinacy and regularization of the statusand role of the procuratorate initiating the retrial procedure in lodgingprotests, and the inequality and specificity of rights and obligations ofinitiating the civil retrial procedure in lodging protests. The author thinks thatalthough there exist a lot of problems in the system of the people'sprocuratorate as the subject of initiating the civil retrial procedure, at presentand in the long period of the future the supervision on the activities ofjudgment of the court should no be softened, but should be strengthened. Thekey is how to define the right of examination and supervision and make outthe relations between the rights of examination and judgment and the right ofdisposing the litigant. The three suggestions for perfection are presented. Thefirst is to redefine the legal status of examination and supervision from theperspective of subject, refer to and introduce the foreign advanced legalsystems, abolish the initiation of the civil retrial procedure by lodgingprotests and carry out the system of examination and supervision as well aschange the subject of initiating the retrial procedure as the subject ofparticipating in the appeal. The second is to restrict the range of cases ofinitiating the civil retrial procedure to the one of "seriously infringing on thenational interests and social common interests". The third is to regularize theways of handling and ending the cases of initiating the civil retrial procedurein lodging protests. For this, the rights and obligations of the inspectingauthority should first be further made explicit and concrete and the situationof the inspecting authority which is at a loss to send its persons at presentshould also be changed, and then the content of Article 184 of the Code ofCivil Law going as that the court, whether it agree with lodging protests ornot, should end cases in the way of judgment or verdicts should be perfected,and finally the levels of retrial the cases of initiating the civil retrialprocedure in lodging protests should be given explicit regulations.In Chapter 2, the problems related to the origins of initiating the civilretrial procedure are mainly discussed. There exist many problems in thecurrent Code of Civil Law of our country. The first is that the legal origins arenot clear, for example, the regulations of Article 179 are of major uncertaintyand strong subjectivity, which is difficult to operate in practice. The second isthat there exists the defect of first defining and then judging for the "indeedwrong"initiating origins regulated in Article 177 of the Code of Civil Law.The third is that the initiating origins are in conflict with practice, whichcauses the court to be passive to work and have no clear understandingbetween putting on record and judgment. The fourth is that the entity isattached great importance and the procedure is neglected in the initiatingorigins. The author presents three suggestions. The first is to change the realexamination to formal examination. The second is to concretely define theinitiating origins of the civil retrial procedure. After concretely dividing andlisting the five initiating origins regulated in Article 179 of the Code of CivilLaw, the author adds three initiating origins, that is, the facts on which theoriginal judgment or verdict is based changed or cancelled, two kinds ofjudgment occurring for the same legal fact or legal relation, and the evidenceproving mediation in violation of the voluntary principle or the content of theagreement for mediation in violation of the law. The third is that the...