Civil Retrial Program Transformation Theory

It is a difficult thing to choose one from these two: maintaining the stabilization and the authority and maintaining the exactness and the justice of an effective judgement. In order to find a balance between them, the CIVIL PROCEDURE LAW of almost all states has established the retrial proceeding. The CIVIL PROCEDURE LAW OF THE PEOPLE'S REPUBLIC OF CHINA (TENTATIVE) also established the trial supervision proceeding in 1982. This dissertation elaborates the concept, the characteristic and the function of the retrial proceeding, and analyzes that the trial supervision proceeding is not the same as the retrial proceeding. It also elaborated the abuse of the retrial proceeding. For we are influenced by the thoughts of former Soviet Union, and even longer time age, influenced by the thoughts of new democracy and"rule by law thoughts", the retrial proceeding established on the basis of law supervision theory ; we think the will of the state is the most important; we strongly believe the power of the intervening of the state; the general public including judicature personnel know not enough the concept of the lawsuit right, so we wrongly take the supervision, rectifying the wrongness as the purpose; take the function of relief as method; take"facts must be true fact, the wrong must be corrected"as the guiding thoughts. We only pursue the objective truth and the entitative justice, despise the legal truth and proceeding justice. We only judge the case according to the objective truth. This dissertation also analyzes in detail the abuse of the court starting retrial according to the authority in the aspects of lawmaking, judicature practice and"the rule of law thoughts". It also analyzes the legal theory and the legal foundation of civil prosecution supervision produced and the reason of its abating. It discusses the abuses that a litigant asks for retrial are as following: the relationship of appeal and asking for retrial is confused; the retrial investigation is not normal; the retrial case can not appeal again; the reasons of asking for retrial are too extensive and non-specified. It also makes clear and definite that the retrial proceeding should take"to give relief to the retrial case";"a limited extent to the retrial case";"to give the chance of appeal to the retrial case"as the guiding principle. It also brings up some idea of reforming our civil retrial proceeding. The theoretic foundation is"the judgement itself lacks the foundation which makes the power of effective judgement justice". The value of the retrial proceeding should take pursuing efficiency as a starting point ,and justice stabilization as direct purpose; pursuing entitative justice as ultimate goal; the legal truth as the basis of judgement . The civil retrial proceeding should make the legal truth as close as possible to the objective truth. We should rescind that the court can start a case retrial according to its authority. We should reasonably limit the counterappeal scope, and make clear that the procurator's office has the right to get the documents of the case from the court and peruse them; has the right to investigate and to obtain the evidence; the court which accept and hear the retrial case; has right to courterappeal again. We also need to make clear the legal position, legal effects, the scope which applied of the procurator's proposal. The dissertation also expound that we should learn the common practice of the present country under the rule of law. We shall acknowledge that the litigant has and can exercise the right of retrial lawsuit. We need to give a chance of appealing again to the retrial case. The dissertation also analyzes the retrial appealing right's premise and foundation contrast to the trial. The right of lawsuit is different from the right of appeal. The litigant starts a retrial case is the most important way. This can ensure that the litigant becomes the main part of the procedure. We should make the retrial reasons become specific and standard from entitative and procedure aspects. The retrial proceeding can be divided into examination and trial stages. The scope of trial should be limited by the litigant's request. The court should form collegiate bench to hear the case. The litigants start the retrial case only once. The dissertation also suggests"to effect a temporary solution to a problem"is not as good as"to effect a permanent cure". We should promote the equipment of judicature personnel. And we also need to reform the legal system accordingly. Our constitution declares"our state respects and protects the human right". Under this background, the state should abandon the preference of the legal supervision theory. The general public should enhance the understanding of lawsuit right and learn to exercise the retrial lawsuit right according to the law. The judicature personnel should reasonably guide people to exercise the lawsuit right. All above are necessary demands of retrial proceeding reformation and also inevitable choice of china, for our country are moving towards to"a country under the rule of law"!...