Theory Of Litigation Claim And Improvement Of Civil Retrial Litigation

The reason why China's civil retrial litigation often slumps in the dilemma of lack of legitimacy, in theory, is the confused understanding about two litigation claims in the civil retrial litigation. To get rid of this predicament, we must distinguish the two claims. We compared the major theories about identification criterions of claims and choose the new double criterions theory to undertake this task. According to this criterion, we can come to the conclusion that the retrial litigation has double claims which we call dualism of claim. The contribution of dualism to validity of civil retrial litigation is that it promote the parties'procedure participating time earlier. Finally, we make suggestions about how to improve the trial courts in the phase of countercheck. These are the basic ideas in this paper.PartⅠ: Introduction. The inconsistencies and predicaments that China's civil retrial litigation faced are concentrated in the phase of countercheck. Despite the newly-revised"Civil Procedure Law of P.R.C."appears a series of improvements, the reform is incompletion, insufficient and halfway. The theory on claims is the necessary tool, which the validity of civil retrial litigation must rely heavily on.PartⅡ: What is litigation claim—what view of litigation claim should we take? Before we study the litigation claim of retrial litigation, we should comprehend the theories on claim. In the first step, we started with the conception of litigation claim. In the second step, we analyzed and compared the different theories on the identification criterion of litigation claims. Finally, we adopt the new double criterions theory.PartⅢ: Monism or dualism—which one is more conducive to the legitimacy of the civil retrial litigation. After establishing the new double criterions theory, we could analyze the condition of claims in the retrial litigation. The dualism of claims in the civil retrial litigation is based on the new double criterions theory. It deemed that civil retrial litigation has double claims. One is the claim in the phase of countercheck. Another is the claim in the phase of retrial. The designing of retrial litigation which is in accordance with the dualism of claim has many advantages.PartⅣ: single-step structure or double-step structure—how to construct the retrial litigation institution. In fact, China's retrial litigation is single-step structure. Parties'claim of abandoning the effective judgement doesn't be treated as a claim. The jurisdiction doesn't respect the right of litigation. To construct the retrial litigation according to double-step structure, we must reform the existing retrial institution. There are three measures of reform. Firstly, adjusting the responsibility of register court and getting rid of the responsibility of countercheck. Secondly, constructing an independent retrial countercheck court. Thirdly, reforming the trial supervision court and construct a independent civil retrial court.PartⅤ: Conclusion.