On The Relationship Of Res Judicata And The Civil Retrial System In China

The theory of res judicata is a most important fundamental problem in the civil litigation, If theories of lawsuit rights are concerning the beginning of litigation , the theories of res judicata are concerning its termination. Res judicata is the translation of the "Rechtskraft" in the German and Austrian civil litigation .Res judicata means the determination final judgment institute referee' s lawsuit object forces the applied force to the parties and the court. It requires that parties can not bring the claim which is contrary to the judgment of the court in the previous litigation to certain lawsuit object and the courts can not make a judgment which is contrary to it. The core of res judicata theory is to restrict courts and parties not to change the determination judgment of the courts in order to maintain the stability of procedure and peacefulness of law.Then, the existence of the effect of res judicata makes the civil dispute stablished, between parties dispute item has been gotten the rests.Unless special circumstances as otherwise provided in the laws, the completed disputes can not be brought into litigation procedure again. The retrial process is established in order to correct mistake referee, achieve substantial justice and eliminate res judicata of the original referee and make a new referee; However, the stability of referee for protecting the stabilization of legal system and the authority Of judicature achieved by making the final referee is also required . It seems that there' s a conflict between retrial process and res judicata, However, both have the same goal for achieving the judicial justice. Our country civil retrial system establishment, is just for the pursue essence, excessively sacrifices the referee stability, endangers the referee namely to sentence the strength, creates the retrial system with namely to sentence the strength system surface conflict to highlight, but the intrinsic balance function reduces. How to understand the res judicata and soften or solve its conflict with civil retrial system is worth discussing. The essay is consisting of introductory article, main body and conclusion. The main body is composed of three parts as follows:Part one: Res judicata theory. It is well known that the first task of theorious research is to have the commonly accepted definitions. In this part, the author firstly tells the definition of res judicata, and brings to light the nature of res judicata from the standpoint of substantive law point, procedural law theory, right substantial lawtheory, new substantive law point and new procedural law theory, and the function of res judicata. Finally, the composing conditions of res judicata, The author holds that res judicata can be quoted when a trial is the end and the lawsuit has the same object, the same cause and the same parties. The key point of res judicata concerns the legal norms within the scope of res judicata, which includes the time scope, the subjective scope and the objective scope.Part two: The conflict between res judicata and our nation' s retrial system. The retrial system is to correct the defects in the judgments of res judicata and the cases is judged again, But, the guidance principle of retrial prosess is not in accordance with the regulation of civil procedure , the beginning of this procedure is too inquisitorial and the causes of retrial are broad and abstract, So the retrial system in china destroyes the system of res judicata.Part three: The balance between res judicata and our nation' s retrial system. Perfecting civil retrial procedure should follow the idea of "correcting error in accordance with law", the court' s power of determining the retrial by authority should be abolished, the procuratorate' s authority of instituting the retrial through lodging a protest should be restricted ,the party' s right of applying for the retrial should be pertected, and in the idea of res judicata how to set the retrial causes are conceived.